Last April, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers released draft Clean Water Act (“CWA”) regulations intended to clarify the federal law’s definition of “waters of the United States.” This is a critically important element of the Act, since only waterways that fit this definition fall under the law’s jurisdiction. In the wake of several recent U.S. Supreme Court decisions that created ambiguity about what waters qualified, EPA set out to revise the definition and establish a uniform standard to fully protect the nation’s waters under this landmark environmental statute.
The new legal definition includes tributaries of navigable waters as “waters of the United States” and confirms the “significant nexus” that exists between tributaries and traditional navigable waters that undoubtedly fit the definition. A “significant nexus” of chemical, physical and biological indicators must exist between wetlands, tributaries and other waterways and traditionally navigable waters to ensure comprehensive coverage under the Act, and the new definition establishes this. This determination obviates the need for case-by-case determinations of which waterways are covered, which has historically led to confusion, conflict and protracted litigation between water users and EPA. The proposed new definition also gives CWA protections to perennial streams that flow continuously year-round, and intermittent and ephemeral streams that flow at different times of the year.
The EPA and Corps reviewed more than 1,200 pieces of scientific peer-reviewed literature and conducted a cost-benefit analysis that found an estimated $388 million to $514 million in annual benefits that would flow from the use of the new, clarified definition. So why are we talking about this? Members of the 114th Congress with an anti-regulatory, anti-environmental agenda are seeking to use legislation to undo or eliminate EPA’s effort – if successful, this would have dire implications for the future of our nation’s waterways, eliminating legal protections that ensure we will not return to the “bad old days” of burning rivers and toxic dead zones in the Great Lakes and Chesapeake Bay. House and Senate bills to restrict EPA’s well thought out proposal are currently being drafted.
Last week, Potomac Riverkeeper Network President Jeff Kelble, along with representatives from Trout Unlimited, National Wildlife Federation and Theodore Roosevelt Conservation Partnership, stood together on Capitol Hill to reaffirm to Congress the importance of EPA and Corps’ draft regulations. The groups met with various senators and representatives to voice their concerns. In particular, Kelble met with staff from Virginia Senators Tim Kaine and Mark Warner, and Virginia Representative Don Beyer. Although the Congressmen reaffirmed their support, they remained noncommittal toward House and Senate attacks on the regulations, with the exception of Representative Beyer who outwardly expressed his opposition to the House and Senate bills.
PRKN President Kelble walked away from the meetings feeling unsatisfied, concerned that a complete rollback of the Clean Water Act definition would lead to states determining which waters to protect. This would inevitably lead to weakened protections among states that court new industries over environmental protection, exactly the problem the Clean Water Act was designed to avoid. “There are five states that drain into the Potomac River and six that drain into the Chesapeake River,” said Kelble. “In that situation, it is critical to have the government set a federal minimum.”
Kelble continued, “Without a federal floor, states are tempted to engage in a race to the bottom, in which they reduce standards to entice business. Fragmenting the protection of the Potomac River watershed and Chesapeake Bay would effectively derail the difficult progress that’s been made to clean up this invaluable natural resource.” Given this threat, the Potomac Riverkeeper Network, along with its partners, is actively opposing Congressional efforts to gut the Clean Water Act, and encourages river enthusiast to speak out against members of Congress pursuing this destructive agenda.
EPA’s Clean Water Rule would strengthen federal protections over our nation’s waters, and reaffirm the Clean Water Act’s goal of restoring these waters to “fishable, swimmable” health. If you’d like to learn more about the Clean Water Rules, visit the EPA website here, read National Wildlife Federation's Clean Water Rules web page here and read a letter from Maryland Senator Ben Cardin here.