Oh, happy day! Clean Water Rule adopted!

This post takes a look at the particulars of the Clean Water Rule, an action the Environmental Protection Agency and the Army Corps of Engineers announced yesterday, but it is also a lot about my kids. Turns out, they're very closely related.

It's hard to describe all of the ways that my kids interact with water. Every summer, they spend big chunks of time swimming in the ocean or nearby lakes with our extended family -- places like Green Harbor, Massachusetts, Little Sebago Lake in Maine, or Great South Bay in New York.

They hot-dog on wakeboards at camp in Maryland on the Elk River, which runs directly to the Chesapeake Bay, and they kayak on the Potomac River, a few miles from home. They take over-long showers, often with their parents barking at them to get ready for school.

They humor their father, who has no talent for fishing but who likes to try, in places like the West Branch of the Perkiomen River, which runs through my buddy's farm in Pennsylvania, or Glimmerglass Lake near Cooperstown, New York, where we camped last summer. And they drink loads of water because, well, they need it to live.

Without adequate controls on water pollution, however, each of these activities can be risky. Polluted swimming water can cause a variety of illnesses, such as stomach flu; methylmercury in fish can cause neurological problems for a developing fetus, whereas polychlorinated byphenyls (PCBs) can cause cancer; and we've seen recent catastrophes in Toledo, OH and Charleston, WV, where hundreds of thousands of people couldn't use their tap water because of toxic substances in the water supply.

The quality of the water that my kids encounter on a daily basis depends a lot on the Clean Water Act. That law, adopted in 1972, set a national goal of making water bodies swimmable and fishable by 1983, and eliminating discharges of pollutants into our waterways by 1985. Although we've fallen well short of these goals, the law brought enormous improvements to the nation's waters by establishing minimum pollution standards for sewage treatment plants and industrial dischargers, and by setting up a framework to implement and enforce state-developed standards designed to make water bodies clean enough for things like swimming, fishing, and drinking water supply.

Yet, beginning about a decade and a half ago and lasting until yesterday, the Clean Water Act has been in disarray. In 2001 and 2006, the Supreme Court issued decisions that undermined the Clean Water Act by creating uncertainty about which water bodies are protected by the law. The Bush administration added enormously to the confusion by adopting policies that have had the effect of excluding 20 percent of the wetlands in the continental U.S. and erecting significant hurdles to protecting small streams and the water bodies nearby them. I summarized this mess in an earlier post.

I cannot overstate the importance of waters that this quagmire put at risk. One in three Americans - a total of 117 million of us -- relies on public drinking water systems that draw supply from headwater, seasonal, or rain-dependent streams. Headwater and irregularly-flowing creeks make up more than half the river miles in the continental United States. Wetlands filter polluted water, reduce the risk of flooding, and provide important wildlife habitat; a single acre of wetland can store 1 to 1.5 million gallons of flood water and wetlands in the continental United States save as much as $30 billion in annual flood damage repair costs.

And that's why the Obama administration launched a years'-long initiative to restore guaranteed protections for these at-risk waterways, known as the Clean Water Rule. The Environmental Protection Agency and the Army Corps of Engineers jointly proposed the Clean Water Rule last spring and issued the final rule yesterday.

Before proposing the Clean Water Rule, scientists in EPA's Office of Research and Development compiled a survey of peer-reviewed literature (and then had its compilation peer reviewed) looking at the ways in which upstream waters influence downstream water conditions. The agencies then sought further peer review of their draft report by the independent Science Advisory Board. After a lengthy and transparent process in which stakeholders could identify additional scientific evidence or challenge the report's conclusions from the evidence, the Science Advisory Board issued a detailed review and EPA then incorporated this feedback into a final "Connectivity Report" that came out in January. The report relies on more than 1,200 publications and provides the scientific foundation for the final rule. Not surprisingly, this review found that these water bodies are enormously important. Specifically, the final report found:

  • The scientific literature unequivocally demonstrates that streams, regardless of their size or frequency of flow, are connected to downstream waters and strongly influence their function.
  • The scientific literature clearly shows that wetlands and open waters in riparian areas (transitional areas between terrestrial and aquatic ecosystems) and floodplains are physically, chemically, and biologically integrated with rivers via functions that improve downstream water quality. These systems act as effective buffers to protect downstream waters from pollution and are essential components of river food webs.
  • There is ample evidence that many wetlands and open waters located outside of riparian areas and floodplains, even when lacking surface water connections, provide physical, chemical, and biological functions that could affect the integrity of downstream waters. Some potential benefits of these wetlands are due to their isolation rather than their connectivity. Evaluations of the connectivity and effects of individual wetlands or groups of wetlands are possible through case-by-case analysis.
  • Variations in the degree of connectivity are determined by the physical, chemical and biological environment, and by human activities. These variations support a range of stream and wetland functions that affect the integrity and sustainability of downstream waters.
  • The literature strongly supports the conclusion that the incremental contributions of individual streams and wetlands are cumulative across entire watersheds, and their effects on downstream waters should be evaluated within the context of other streams and wetlands in that watershed.

Against this scientific backdrop, the agencies proposed to restore guaranteed protections to tributaries and nearby waters, and to allow for the protection of other waters based on a more localized analysis of their role in downstream water quality.

The proposed rule generated enormous public interest and support. The agencies received than one million public comments, fully 87 percent of which favored the action. This overwhelming support parallels the results of a national poll that the League of Conservation Voters recently released; according to those results, 80 percent of registered voters polled supported the Clean Water Rule, of which 50 percent said they strongly supported it. Moreover, approximately three-fifths of those polled thought the federal government should do more to protect our waterways, and more than 60 percent of respondents said that they trusted EPA and the Corps to protect waters from pollution.

Of course, there were critics as well. As I have chronicled in this space, the American Farm Bureau Federation and other major industry associations mounted an aggressive and misleading campaign against the rule and some Congressional opponents of rigorous enforcement of the Clean Water Act launched a barrage of legislative attacks trying to kill the rule, even before it could be finalized.

For the most part, the assault on the proposal was doctrinaire, but some groups offered truly constructive criticisms. These active participants in the rulemaking process were heard; EPA held more than 400 meetings with stakeholders around the country, and the agencies repeatedly committed to further refine the rule to provide maximum clarity while also ensuring protections for the waters that have important and scientifically-documented impacts on downstream waterways. The result is the rule released yesterday.

So, what does the final Clean Water Rule do?

First, it leaves unchanged the longstanding protections for waters that can float a boat (including smaller recreational craft), coastal waters, interstate waters, and impounded waters (like reservoirs behind dammed rivers).

Second, the rule restores guaranteed protections that federal clean water rules used to contain for tributaries, and it requires flowing waters to have a couple of physical indicators (an ordinary high water mark and a bed and bank) in order to qualify as a tributary. This guarantees that the waterway flows sufficiently that it is a permanent aquatic feature (as opposed to runoff flowing over the land).

Third, the Clean Water Rule safeguards wetlands and ponds that are adjacent to other covered waters, which had been protected prior to the Supreme Court's decisions and the prior administration's policies. The final rule uses the well-known concept (and commonly-mapped area) of the 100-year floodplain to identify which waters are adjacent to tributary streams, but imposes bright-line distance limits on what can be considered adjacent. The rule takes the same approach to say what waters are adjacent to things like lakes and ponds. In an apparent concession to the overheated rhetoric from the American Farm Bureau Federation, the agencies have carved out certain adjacent waters on agricultural land, and have opted not to give them guaranteed protection.

Fourth, for waters not considered adjacent, the rule would allow for their future protection based on an analysis whether they significantly impact downstream water conditions in the watersheds in which they're located. A few kinds of these waters are more likely than others to be found to be covered under this approach - ones that the agencies' scientific review found to be prevalent in specific regions of the country and that perform similar functions for downstream waters. These categories are among those that the scientific evidence is strongest. Indeed, as the Science Advisory Board specifically advised EPA:

There is also adequate scientific evidence to support a determination that certain subcategories and types of "other waters" in particular regions of the United States (e.g., Carolina and Delmarva Bays, Texas coastal prairie wetlands, prairie potholes, pocosins, western vernal pools) are similarly situated (i.e., they have a similar influence on the physical, chemical and biological integrity of downstream waters and are similarly situated on the landscape) and thus could be considered waters of the United States.

The rule does not cover non-adjacent waters when they are more remote from the tributary system; specifically, it will not protect a such a water body if it is: (1) not in any of the categories listed above; (2) beyond the 100-year floodplain of other covered waters; and (3) farther than 4,000 feet from another protected water. This element of the rule, unfortunately, does not follow the Science Advisory Board's advice that "the existing science does not support excluding groups of 'other waters' or subcategories thereof."

Fifth, the rule exempts a long list of features from being covered by the law, namely things that the agencies have determined are less important to treat as protected because they are less relevant to downstream water quality. This includes some of the bogeymen that the opponents of the rule have claimed would've been covered by the proposal, absurdly including puddles. But it also writes exemptions into federal law that have only previously been followed as a matter of policy; these exemptions include things like artificial ponds used for livestock watering and irrigated areas that would revert to dry land if the irrigation stopped. The rule explicitly exempts groundwater. And the rule actually cuts back on current policies' approach to man-made channels. In some of these cases, the final rule requires less of dischargers than scientists recommended. In reviewing the proposed rule, the Science Advisory Board told EPA:

The proposed rule identifies other exclusions not justified by science. There is, for example, a lack of scientific knowledge to determine whether ditches should be categorically excluded. Many ditches in the Midwest would be excluded under the proposed rule because they were excavated wholly in uplands, drain only uplands, and have less than perennial flow. However, these ditches may drain areas that would be identified as wetlands ... and may provide certain ecosystem services. *** Also, although excluded from jurisdiction under the proposed rule, artificial lakes or ponds, or reflection pools, created by excavation, diking, or construction can be directly connected to jurisdictional waters by groundwater, which may be shallow as well as deep groundwater in unconfined aquifers.

Any departure from the science concerns us because of what it represents - a license, without federal oversight, to pollute or destroy waters that can have important downstream impacts.

These compromises are not inconsequential, but the agencies clearly concluded that these choices were needed to develop bright lines that identify protected and non-protected features. Moreover, the agencies' rule ensures coverage for countless critical waters; by returning guaranteed protection to small, seasonal, and rain-dependent streams and nearby waters, and by enabling concerned citizens to secure protections for additional waters when the science justifies it, this rule represents a major step forward in national pollution control policy. It'll mean that fewer water bodies will be destroyed without undergoing an environmental review, and it'll mean that pollution control officials can hold industrial dumpers responsible in circumstances that they couldn't in the years prior to yesterday. It's a foundation for cleaner water, so my kids and I will celebrate this rule now and every time we enjoy America's great water resources.

Finally, I cannot end this post without talking about Joan Mulhern, my friend and the person who -- before her criminally early death two-and-a-half years ago -- fought to fix this mess harder than anyone on the planet. In a beautiful recent post, New York Times editorial writer Bob Semple said Joan "would have loved this day," though I'm equally confident that she would, as soon as the rule was signed, have moved on to the next great challenge in protecting the nation's waters, and she wouldn't have let any one of us pause for too long to savor this accomplishment. Her doggedness led directly to the protections adopted yesterday. They are Joan's legacy and her great gift to millions of people.

About the Authors

Jon Devine

Senior Attorney, Water program

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