A look back at why EPA’s rollback doesn’t hold water
In January, the administration released its final new rule establishing the reach of the Clean Water Act. If this rule survives court challenges, the landmark federal law protecting our nation’s water from polluting activities will cover fewer waterbodies than at any time since 1972.
The new rule will not safeguard wetlands unless they are adjacent to a river, removing protections for the many wetlands supplied by underground source water, such as the prairie potholes of the upper Midwest, high mountain fens, and the playas of the southern plains. The new rule will also not protect “ephemeral” streams, which flow only after rainstorms.
The 1972 Clean Water Act responded to catastrophic pollution in the 1950s and 1960s, like the Cuyahoga River burning and Lake Erie being declared “dead.” The law replaced a 1965 federal statute that had given states the lead in fighting water pollution. While states are closer to problems and know the local value of a waterbody better than a federal agency in Washington, D.C., states simply did not have the resources or political will to stop the powerful interests responsible for the most damaging pollution.
So, Congress imposed a comprehensive framework to clean up America’s waters. The newly created Environmental Protection Agency and the U.S. Army Corps of Engineers became the first line of defense by policing activities that discharged pollutants to rivers, streams and wetlands, although states were given the option to assume these permit programs if they could demonstrate they had the resources to do so. Meanwhile, states continue to set water quality standards, subject to federal approval, for their rivers, streams, and lakes, while the EPA established nation-wide “technology” standards on an industry-by-industry basis.
Finally, to ensure all parties had incentives to work towards better water quality, Congress appropriated billions of dollars to states for revolving funds to make loans to local governments for the construction of modern wastewater treatment facilities.
Over the decades, this strategy proved spectacularly effective. Our waters are substantially cleaner that in 1970 thanks to the Clean Water Act.
To be sure, every state still has its list of “impaired” waters, most of which are polluted by runoff from agriculture, abandoned mines, or urban development. The law requires states to adopt plans that move these waters towards better quality. Congress provides Section 319 funding to incentivize the implementation of measures that can minimize or eliminate polluted runoff.
Why is this history important? EPA and the Corps of Engineers argue that their decision to stop protecting many streams and over half of the country’s remaining wetlands is justified because states can and should have this responsibility. They assert this rationale while acknowledging that states currently have neither the programs nor the funds to protect all these waters, especially without the substantial federal investment of the last 48 years.
The federal agencies claim that if these water resources are truly important, states will pass legislation to create new programs and impose the new taxes or fees needed to support them, so that they protect their no-longer federally protected waters and wetlands. And if states don’t, then too bad.
“Too bad” is not responsible clean water policy. Congress acted in 1972 for a reason.
The EPA’s rollback gives the nation a choice: do we really want to lose the clean water gains of the last half century, standing by as activities pollute or destroy the wetlands that support the country’s waterfowl, the headwaters streams that nurture our trout and salmon, and the desert washes that sustain entire communities?
If not, hunters, anglers, and everyone who values these precious water resources will need to organize a massive grassroots campaign. Either we must convince Congress to clarify that the Clean Water Act is intended to protect these water resources or—if Congress refuses to act—we must work to ensure all 50 states have the resources and political will to take over this awesome responsibility.
Failure can simply not be an option.
Top photo: BLM Oregon via Flickr