New U.S. Water Rule is Crucial for Clean Drinking Water and Resilience to Droughts and Floods

June 4, 2015

NOTE: Images in this archived article have been removed.

Image Removed
An aerial view of the Prairie Pothole Region, near Wing, North Dakota. A new U.S. clean water rule protects prairie potholes and other freshwater ecosystems. Credit: Jim Ringelman, Ducks Unlimited/courtesy US Department of Agriculture.

It took nearly a decade, but finally the waters left terribly muddied by two U.S. Supreme Court cases have gotten a good bit clearer.
 
This week, the Environmental Protection Agency and the Army Corps of Engineers issued a new rule clarifying which of the nation’s streams and wetlands come under the protections of the federal Clean Water Act.
 
Without this rule, some 117 million people – about one in three Americans – would continue to get drinking water from streams that lacked clear protection from pollution and degradation. And large populations of fish and wildlife would remain at risk of losing critical habitat.
 
The need for this clarification arose in large part from the U.S. Supreme Court’s 2006 decision in the Rapanos-Carabell case, named for the two petitioners who each had sought to develop wetland areas on their Michigan properties – one for a shopping center in Midland, the other for condominiums north of Detroit.
 
In a mixed ruling, the four conservative justices ruled that the Clean Water Act applies only to “permanent, standing or continuously flowing” bodies of water, casting aside the protection of ecologically crucial seasonal and ephemeral wetlands and streams that are often hydrologically connected to flowing waters downstream.
 
Four other justices disagreed with this hydro-illogical interpretation and sided with sound science and the overall intent of the Clean Water Act to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”
 
It was Justice Anthony Kennedy, however, who, in a separate opinion, introduced the confusing requirement that only streams and wetlands for which a “significant nexus” with navigable waters can be shown to exist should be subject to the law’s protections.
 
Justice Kennedy’s opinion set up a case-by-case approach that quickly became a regulatory nightmare and left in limbo the status of vast areas of small streams and wetlands.
 
Back in 2005, I joined nine other scientists, including the esteemed Harvard biologist E.O. Wilson, in writing and submitting an amicus curiae (“friend of the court”) brief to inform the justices about the relevant science in this case.
 
In the summary of our argument, we wrote:
 

“Reasonable people can disagree over language, and it is for the Court to decide questions of law. But when it comes to the connection of tributaries, streams, and wetlands to navigable waters and interstate commerce, there is no ecological ambiguity. In the opinion of Amici, if the Clean Water Act does not protect these resources, then it does not protect navigable waters from pollution, and it cannot achieve its goals.”

 
Besides underscoring the various pathways by which tributaries, wetlands, aquifers and rivers are connected, we pointed out that besides supplying water and fish, aquatic ecosystems provide valuable economic services. They recharge groundwater, filter pollutants, mitigate floods and droughts, purify drinking water, and sustain a diversity of habitats.
 
We noted that the loss of water-cleansing wetlands in the Mississippi watershed far upstream from the Gulf of Mexico can contribute to the formation of the low-oxygen “dead zones” that threaten the Gulf ’s fisheries and food webs each year.
 
We pointed out that interconnected wetlands and stream systems absorb stormwater, thereby alleviating flood damage.
 
With Republicans in the U.S. House of Representatives having already passed a bill that would roll back the new EPA-Army rule, and the Senate considering a similar measure, it is crucial for citizens everywhere to speak out about the importance of clean water and freshwater ecosystems to their health, communities and economies.
 
The EPA and Army Corps of Engineers have done a great service in clarifying the waters protected under the Clean Water Act, which enjoyed bi-partisan support and was signed into law by President Richard M. Nixon in 1972.
 
The new rule does not create any new permitting requirements, and it maintains all previous exemptions and exclusions, including for farm activities such as planting, harvesting and moving livestock.
 
But it removes uncertainty, unlocks regulatory logjams, and reinforces the critical role healthy freshwater ecosystems play in our economy and in building resilience against the more extreme floods and droughts coming down the pike.
 
Our government is the custodian of the public trust in water. Both sides of the aisle should respect and uphold the original intention of the Clean Water Act and leave this new water rule in full force.

Sandra Postel

Sandra Postel directs the independent Global Water Policy Project, and lectures, writes and consults on global water issues. In 2010 she was appointed Freshwater Fellow of the National Geographic Society, where she serves as lead water expert for the Society’s freshwater efforts. Sandra is co-creator of Change the Course, the national freshwater conservation and restoration campaign being pioneered by National Geographic and its partners. During 2000-2008, Sandra was visiting senior lecturer in Environmental Studies at Mount Holyoke College, and late in that term directed the college’s Center for the Environment. From 1988 until 1994, she was vice president for research at the Worldwatch Institute. Sandra is a Pew Scholar in Conservation and the Environment, and in 2002 was named one of the Scientific American 50, an award recognizing contributions to science and technology. In 1992 Postel authored Last Oasis: Facing Water Scarcity, which now appears in eight languages and was the basis for a PBS documentary that aired in 1997. She is also author of Pillar of Sand: Can the Irrigation Miracle Last? (1999) and co-author of Rivers for Life: Managing Water for People and Nature (2003). Her article “Troubled Waters” was selected for inclusion in the 2001 edition of Best American Science and Nature Writing. Sandra has authored well over 100 articles for popular, scholarly, and news publications, including ScienceScientific AmericanForeign PolicyThe New York Times, and The Washington Post.

Tags: conservation, Water Supplies