In early 2020, the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) finalized a sweeping rollback of Clean Water Act protections, threatening drinking water supplies for 1 in 3 Americans, habitat for fish and wildlife, and the $887 billion outdoor recreation economy.
Most tributary streams – regardless of where they flow or how they affect water quality and public health – will lose protection under the rollback. The rollback also strips protection for over half of all wetlands in the U.S. because they do not have a continuous surface connection to a river or lake.
Further, this rollback limits the Clean Water Act's ability to protect many small tributary streams and wetlands across the country. Because clean water is so important to Ikes, the League has been engaged on this issue since day one.
That was back in December 2018, when EPA and the Corps unveiled the Trump Administration’s definition of Waters of the United States (WOTUS) – a regulation that tells agency staffs which waters are protected by the Clean Water Act. Under this new regulation, dumping pollution directly into many tributary streams defined as ephemeral, or draining millions of acres of wetlands without a permit, is no longer illegal under federal law.
You can read the final rule here.
This rule defines WOTUS in a way that eliminates Clean Water Act protections for all wetlands that do not have a “continuous physical connection to a protected water body.” This means that if a wetland does not actually touch a large river, lake, or ocean, it could be drained and filled without a permit. In addition, all streams that only flow after precipitation events will lose protection.
This new rule threatens to dramatically harm water quality across America and fails to account for science, the law, or the outdoor recreation economy.
Science
In developing the 2015 Clean Water Rule, EPA identified more than 1,200 studies demonstrating the biological, chemical, hydrologic, and other connections between waters. But in the process leading up to the revised rule, EPA did nothing that explains how this body of science is incorrect or no longer relevant to a process focused on the very same issues as the 2015 Clean Water Rule: defining specific types of waters protected by the Clean Water Act. Instead, the agency has only said that the Clean Water Rule relied too heavily on science! But how can a scientific agency determining the scope of water quality protection in America rely too heavily on science?
Simple common sense tells us that pollution in a tributary stream – even a stream that only flows after a rainfall event – will make its way downstream and affect all of the waters and people it interacts with along the way. The new rule fails this common sense test and does not account for what scientists and hydrologists have made clear: we all live downstream.
The Law
For decades, the Clean Water Act was interpreted so that regulation was based on effects to water quality. If a small stream could affect water quality downstream in a larger river or reservoir, that small stream was protected by the Act. That interpretation is accurate because the purpose of the Clean Water Act is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”
The new rule fails to meet the purpose of the Clean Water Act. The transmission of pollution from smaller to larger waters is not solely dependent on the length of time that a stream flows. The purpose of the Clean Water Act is to improve water quality nationwide, in part by regulating what is discharged into the waters of the United States. Pollution discharged into tributary streams, even if they do not flow continuously all year, will affect the chemical, physical, and biological integrity of the nation’s waters. Likewise, the vital hydrological role of wetlands for storage and purification of water within a system does not change simply because a wetland might lack a continuous surface connection to a large river or lake. It is imperative that we protect these important resources.
State Protections Are Insufficient
The Trump Administration suggests that this new regulation will not lead to increased pollution because state laws provide duplicative protection for all of the waters once protected by the Clean Water Act. This is blatantly false. Americans cannot depend on state laws to protect the waters left vulnerable by this action because most state laws do not offer the same level of protection. According to EPA’s own analysis used to justify the new definition, protections for streams, wetlands, and other waters will be weakened in 32 states because state protections are not as strong as federal protections had been.
This map shows which states will lose at least some Clean Water Act protections for streams or wetlands (depicted in red), as well as the states that are downstream of those lost protections (depicted in orange). States depicted in green will not lose clean water protections. Click the image to view a larger version.
Clean Water and the Outdoor Recreation Economy
In addition to failing to protect drinking water and public health, the new rule threatens the $887 billion outdoor recreation economy. Clean water and abundant wetlands are essential to a number of outdoor recreation activities, including hunting, angling, paddling, and boating. Isolated wetlands, including the prairie potholes of the Northern Great Plains, are essential breeding habitat for North American waterfowl, and many freshwater fish rely on ephemeral and intermittent streams at some time during their life cycle. Freshwater fishing alone has a $29.8 billion economic impact in the U.S.
Furthermore, Americans understand that protecting clean water is necessary to protect outdoor recreation, especially hunting and fishing. Instead of relaxing Clean Water Act protections, 92% of American sportsmen and women believe we should strengthen or maintain current standards, according to a 2018 poll conducted by the Theodore Roosevelt Conservation Partnership.