Due to floods in 2013 near Lyons, Colorado, United States, an old pond became the St Vrain River’s new channel. Photo credit: Matt Nager/National Geographic
Earlier this year, President Trump signed an executive order to begin the process of rolling back the Clean Water Rule, also known as the Waters of the United States (U.S.) rule, passed in May 2015 under former President Obama.
According to Forbes, the Izaak Walton League of America, the Theodore Roosevelt Conservation Partnership, and National Wildlife Foundation, among others, released a statement at that time, describing the situation as “a tragedy for fish and wildlife, hunting and fishing, and clean water.”
Under the Obama Administration, the Clean Water Rule was held up in court, where, according to National Geographic, streams could be guarded as long as they merge downstream with larger waterways. The rule also extends its protection to some isolated lakes and wetlands.
The U.S. Environmental Protection Agency (EPA) originally based the rule on a 400-page report that consolidated and incorporated over 1,000 peer-reviewed articles.
“There’s close to a scientific consensus on this issue,” Brian Chaffin, a water policy professor at the University of Montana told the National Geographic.
David Cooper, a wetland ecologist at Colorado State University, added, “Protecting our waters really depends on the quality of tributaries.”
But the new executive order President Trump issued directed the EPA and the U.S. Army Corps of Engineers to replace the rule with one not based on the science of hydrology, biology, or chemistry, but on a conservative and limited interpretation of the Clean Water Act then-Supreme Court Justice Antonin Scalia came up with around 10 years ago, where only water bodies with “a continuous surface connection” could be protected.
The problem with water
Water law is a labyrinth at best and a convoluted string of laws and regulations at worst, and throughout the entire Clean Water Act’s four-and-a-half decade long history, the question of which water body it could be applied to has always been disputed and obscure.
By itself, the law regulates “navigable water”, and outlined rather ambiguously as “water of the United States.”
A few years after the water law was passed, the EPA and Army Corps issued a regulation that proceeded to remain in place for the next two and a half decades, protecting various types of streams and wetlands.
But in 2001, when the Solid Waste Agency of Northern Cook Country (SWANCC) sued the Army Corps for refusing them a permit to convert a former gravel-mining pit into a landfill, and the case went all the way to the Supreme Court, things altered once again.
As stated in the case, over a number of years, the pit had collected water and become a seasonal layover for multiple species of migrating avians. The Supreme Court ruled in favour of SWANCC, saying that the Army Corps had overreached themselves and while the Clean Water Act covered numerous bodies of water, “isolated waters” were not under its protection. Instead, there had to be “significant nexus” to “navigable waterways”.
Unfortunately, the Court ruling had the opposite effect of what it likely intended: Instead of clarifying the complex Clean Water Act, the ruling created even more confusion.
In 2006, another Supreme Court case brought things to a head. In the case of Rapanos v. United States, a mall developer who had filled in a wetland under the precinct that that it was too far from “navigable waters” and certainly had no “significant nexus” was convicted on two counts of felony.
And once again, the case failed to clear any ambiguities concerning the protection of water under the Clean Water Act, churning up even more uncertainty. Furthermore, the “significant nexus” regulation has remained in place, though what it means is still unclear more than 15 years after it was first introduced.
The Obama Administration
Finally, in 2014, the Obama Administration decided to clarify the Clean Water Act once and for all. Basing new regulations on an enormous scientific review process along with an estimated two million public comments, the EPA released the Clean Water Rule.
Designed and developed to make sure that “waters protected under the Clean Water Act are more precisely defined, more predictable, easier for businesses and industry to understand, and consistent with the law and the latest science,” according to the EPA, “the rule protects streams and wetlands that are scientifically shown to have the greatest impact on downstream water quality and form the foundation of our nation’s water resources.”
The rule guards tributaries that have “a bed, a bank, and ordinary high water mark”, along with “regional water treasures”, much like prairie potholes and Texas coastal wetlands “when they impact downstream waters.” However, it does not cover most farm ditches, ploughing fields, or moving livestock.
Unfortunately, the rule was challenged in court and has been put on hold. In the interim period, a guidance document issued by the Bush Administration as a temporary stop-gap in 2008 is the guide to which waterways are protected by the Clean Water Act and what is not.
“Guidance documents don’t have the force of law,” Melinda Kassen, a water lawyer at the Theodore Roosevelt Conservation Partnership, Colorado, U.S., said to the National Geographic. “Everyone agrees it’s not a good way to be operating.”
If the Clean Water Rule is indeed rolled back, much more water will be left unguarded than many think.
For example, in the state of Colorado, there is approximately 95,000 miles (152,000 kilometres) of streams, but only roughly 15 miles (24 kilometres) of the water can be considered “navigable waterways.” With an extremely narrow and limited reading and understanding of the Clean Water Act, 99.985 per cent of water in the state – and the water of every state downstream of Colorado, by extension – could be at risk from water pollution.
If the EPA releases a new rule based on Scalia’s interpretation, the lawsuits will begin flying almost immediately, and it will almost undoubtedly end up, yet again, in the Supreme Court.
“If they apply the Scalia test, or just say it’s only the navigable waters and nothing else,” Michelle Bryan, a natural resource law professor at the University of Montana, told the National Geographic. “Then we are going to have litigation of breathtaking proportion.”
Sources: National Geographic, Forbes, The New York Times