Clean Water Losses – State and Federal Protections Declining
Rivers provide drinking water for two-thirds of all Americans and yet Congress is trying to rollback protections and funding for keeping these very waters clean. Meanwhile, a recent report shows that state protections do not fill this gap.
The Clean Water Act, our nations landmark law for protecting clean water, has consistently been under attack following Supreme Court rulings in 2001 (Solid Waste Agency of Northern Cook County (SWANCC)v. Army Corps of Engineers) and 2006 (Rapanos v. United States). Both cases created ambiguity concerning what waters are protected under the Clean Water Act, which has led to a decline in protections via a lack of enforcement, delays in permitting, and failure to protect small streams and wetlands that are vital to protecting communities from flooding.
If all of this sounds a bit confusing, it is because it currently is, but the reality is that the research is quite clear. Water flows downhill and protecting small streams from destruction and pollution also protects the mighty rivers we all depend on – and until recently this was how the Clean Water Act was interpreted. Since the Court decisions, there has been confusion surrounding the definitions of “isolated”, “significant nexus”, and “navigable,” and both the Environmental Protection Agency (EPA) and the Army Corps of Engineers have worked tirelessly to decipher these meanings.
A recent study published by The Environmental Law Institute evaluated the results of these post Supreme Court changes and identified numerous vulnerable aquatic ecosystems including prairie potholes, bogs, Carolina bays, playas, vernal pools as well as headwater, ephemeral and intermittent streams that are in jeopardy, mainly from development. These habitats are known to contain a unique diversity of fish and wildlife and also aid in flood mitigation.
Unfortunately, state programs are not filling the gap. While clean water protection has always been a joint state-federal responsibility, only 25 states have specific programs to protect freshwater wetlands, with varying levels of effectiveness. At the same time, some states are rolling back their laws so that federal requirements are the ceiling instead of the floor for environmental protections.
The uncertainty surrounding federal and state protection of these vital ecosystems has amplified the need for stronger and clearer protections at all levels. And now, Congress is trying to stop the Corps of Engineers from clarifying what waters are protected under the Clean Water Act.