Wetlands Left Vulnerable to Lead, Development – Why the EPA’s Proposed Rule Matters

This is the guest blog from American Rivers Clean Water Supply Intern, Colleen Walters.

Cherry Run headwaters, Bald Eagle State Forest Clinton, CO | © Nicholas A Tonelli

The proposed rule released by the EPA and the Army Corps of Engineers is important to address the uncertainty surrounding what waters are protected under the Clean Water Act | © Nicholas A. Tonelli

On March 25, 2014, the Obama Administration released a proposed rule that attempts to clarify the scope of the Clean Water Act. Despite nearly thirty years of broadly interpreting the law to apply comprehensively to waters across the country, two Supreme Court cases in 2001 and 2006 put protections for small streams and wetlands into question.

Why is this proposed rule important?

Following the SWANCC decision in 2001 and the Rapanos decision in 2006, the Environmental Protection Agency (EPA) and the Army Corps of Engineers released guidance documents for agency staff about how to implement the Clean Water Act following those decisions. In combination with the uncertainty following these decisions, the guidance documents made it substantially more difficult to protect small streams, wetlands, and other waters that were historically protected under the law.

When water bodies aren’t determined to be “waters of the United States,” they no longer fall under the scope of the Clean Water Act. Polluters don’t need permits to dump pollution into those waters. Enforcement action can’t be taken to protect them.

From 2001, following SWANCC, to 2009, it is estimated that 15,000 [PDF] water bodies were declared unprotected by federal agencies. The following examples are just a few of the thousands of cases and protections lost as a result of the uncertainty, confusion, and delayed enforcement surrounding Clean Water Act implementation.

The Farmington River – Nearby Wetlands Left Vulnerable to Lead Pollution

The Farmington River in Connecticut, designated as a Wild and Scenic River in 1994, is host to trout fisheries, supports canoeing and kayaking, and contributes to the drinking water for over 600,000 people in Greater Hartford and Farmington Valley. A spotlight was placed on the wetlands adjacent to the river when a community group spoke out about lead pollution [PDF] resulting from a shooting range that borders the wetlands.

The wetlands are only separated from the river by a small road on one side, and during periods of flooding, the water rises over the road and into the river. The wetland and the river are also directly connected, during periods of precipitation, by a tributary called Horseshoe Cove. Lead shot was accumulating in the wetlands and posed a potential health risk of contaminating drinking water supplies. Lead exposure is especially dangerous to children and pregnant women, and can cause cardiovascular and reproductive issues in other adults. Despite this, a federal court used the Rapanos ruling to decide that there is no continuous surface connection and, therefore, the wetland would not be protected.

Protections Slashed for Forested Wetlands in Florida to Build Phosphate Mine

In 2003, the EPA and Corps approved an Environmental Impact Statement (EIS) for the expansion of the Hamilton County Mines in Florida. The expansion came with the hearty price of slashing Clean Water Act protection for 3,997 acres of forested wetlands [PDF] that were historically protected as waters of the United States. The wetlands were considered “isolated” and non-jurisdictional as it related to the Suwannee River, ignoring the indicators that the wetlands indeed impact the health and function of the river. The Florida DEP responded to the EIS approval, stating that the wetlands not only provide drinking water, shelter, resting and feeding habitat for threatened and endangered species, but also the forested wetlands help to maintain the water quality of the river, and the wetlands themselves offer recreational activities. Where previously the mine owners would have required permits that put limits on pollution, the resulting uncertainty surrounding what types of wetlands are actually covered under the Clean Water Act essentially gave these polluters a free pass to destroy these wetlands.

A company in Alabama was found dumping oil, lead and grease  [PDF] into a local creek, and the defendants claimed that the government had not shown a “significant nexus” to a navigable water body. In Kentucky, owners of an abandoned mine were found polluting nearby wetlands with acid mine drainage  [PDF] and led the courts through a seventeen year battle to define Clean Water Act protection.

What Can You Do?

These examples help to illustrate the critical need to restore protections to small streams and wetlands. The proposed rule is an important step forward to better protect and restore clean water. Make your voice heard and tell the EPA that you support strong clean water protections.

3 Responses to “Wetlands Left Vulnerable to Lead, Development – Why the EPA’s Proposed Rule Matters”

Michael Clark

The drinking water my family and friends use comes from a small reservoir in a forested area nearby. Land within that basin will possibly be subject to hydraulic fracturing if the state allows it, please do all you can to protect the water supply for Frostburg, MD. Thank you

Greg Browne

I support a strong Clean Water Act that protects all bodies of water in the U.S. from pollution.

Eleanor Nettleton

The War in Syria stemms from drought.Waters of the entire planet are connected.We MUST protect all water systems and watersheds. We ALL Live downstream