If you like water, for swimming, fishing, canoeing, or just plain old drinking, you should be pleased at a couple of actions that the Obama administration has announced today. These steps are critical to clarifying what streams, wetlands, and other waters are protected by numerous pollution programs in the Clean Water Act. The Environmental Protection Agency, along with the Army Corps of Engineers, announced that it has sent a proposed rule to the White House, kicking off a process that will culminate in regulations that clearly state which specific kinds of waterways must be protected. EPA also opened an opportunity for the public to evaluate and comment on a report summarizing the peer-reviewed scientific literature that addresses the degree to which waters – particularly headwater and intermittent and ephemeral streams, wetlands adjacent to such streams, and so-called "isolated" waters -- have physical, chemical, or biological linkages to other, generally larger, waters. These are important steps towards the critical end goal of a comprehensive set of rules that protect the waters science shows to be important in the aquatic ecosystem.
I’ve blogged about this issue a number of times before, because it unfortunately has been a problem for many years, and because entrenched polluting interests and their friends in Congress have tried to kill efforts to fix it. But there are millions of reasons to fix it – nearly two million miles of streams and the wetlands that support them lack clear Clean Water Act protection against pollution and destruction. Over 117 million Americans receive drinking water from systems that draw supply from headwater and other vulnerable streams. Approximately 20 percent of the over 100 million acres of wetlands in the continental U.S. have been effectively written out of the law for over a decade. The net result of this legal uncertainty is that it is time-consuming and resource-intensive for citizens and water pollution control officials to establish that a particular waterway is covered by the law. Also, federal law enforcement has moved away from certain classes of water bodies, effectively taking the cop off the beat in critical places.
So, what happened today?
Science Report Released for Review -- EPA's Office of Research and Development has done a detailed overview of the peer-reviewed scientific literature, examining the degree to which waters that today have uncertain protection (headwater and intermittent/ephemeral streams, wetlands adjacent to such streams, and so-called "isolated" waters) have physical, chemical, or biological linkages to waters that are clearly covered (navigable ones, interstate ones). Under the law as it has developed, non-navigable waters with such connections can be protected.
The EPA analysis will be reviewed by an independent panel convened by the EPA Science Advisory Board. The public release of the report today also kicks off an opportunity for the public to provide input for the SAB panel to consider in its review of the report.
The agencies deserve credit for compiling the science and for their evident intent to let it dictate the scope of the future rules. It’ll be critical for the SAB to consider any available information about these connections, especially because the idea that water bodies are connected to one another is so self-evident that I’ll bet it hasn’t been extensively explored in the peer-reviewed literature.
Proposed Rulemaking Sent to White House –People across the clean water spectrum (ironically including long-time opponents of Clean Water Act protections) have called for a regulation that clarifies the scope of legal protections after a public notice-and-comment process. EPA and the Corps announced today that they have taken a big step in that direction, by sending a draft of the proposed rule to the White House. The White House coordinates an interagency process to review planned regulatory actions, in a process that is typically supposed to take 90 days or fewer.
Although we don’t yet know what’s in the proposed rule, simply getting the proposal moving is great news. That means that it should soon be out to citizens for their input, which the agencies can incorporate into their final rule, along with the feedback on their science assessment.
For about 500 days, guidelines that would increase the clarity about which waters are protected while the agencies work on final rules have been pending at the White House, just someone’s okay from being released. These draft guidelines were released for public comment in April 2011, with people submitting over 230,000 comments, the vast majority supportive. This would be a modest, but still significant, step forward. We have believed that this would be an important complement to the rulemaking process, as water bodies are being cut off from Clean Water Act protections routinely as a result of the implementation of weak guidelines the Bush administration developed. That’s why 20 craft brewers dedicated to clean water recently wrote to President Obama to ask him to finalize the guidelines promptly.
As the agencies have made their announcements today, however, they've been conspicuously quiet about these guidelines. We continue to believe it is critical to take the last – remarkably easy – step to put these improvements in place during the period before the rule is complete. Postponing action any further would be nonsensical, especially given how important EPA and the Corps obviously understand this issue to be.