It has been years in the making, but this week, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers finally unveiled, and are seeking public comment on, updated rules that will determine what bodies of water are protected by the Clean Water Act.
The hope is that these new rules will restore protection for about 20 million wetland acres and two million miles of streams whose legal status was thrown into uncertainty during the Bush era.
Prior to 2001, virtually all streams, wetlands, lakes and other water bodies were understood to be covered under the Clean Water Act which has authority over “navigable waters,” defined in the Act as the “waters of the United States.” But Supreme Court decisions in 2001 and 2006 threw into doubt just what constituted as “navigable.” Seasonal or intermittent streams and isolated bodies of water, were suddenly not guaranteed protection.
Time and time again, the legal limbo of these waters has allowed polluters to contaminate without consequences. For example, when crude oil was discharged into Edwards Creek, a seasonal stream near Talco, Texas, the EPA did not pursue legal action because of how complicated it would be to prove that the water was protected under the Clean Water Act. Similarly, when Chevron was taken to court for a pipeline spill that leaked 126,000 gallons of oil into a west Texas creek, a federal trial court in Texas ruled that because no water was flowing in the tributary at the time of the spill, the Clean Water Act had not been violated.
Approximately 117 million people in the lower 48 states, or one in three Americans, get some or all of their drinking water from public drinking water systems that rely at least in part on intermittent, ephemeral, or headwater streams.
The new draft rules would protect most seasonal and rain-dependent streams as well as wetlands near rivers and streams. More isolated water bodies, with “more uncertain connections with downstream water,” will be evaluated for protection on a case-by-case basis.
“This is good news for boaters, anglers, swimmers, and families who rely on clean drinking water,” said Peter Lehner, Executive Director of the Natural Resources Defense Council in a release. “EPA took an important step to finally rescue these waters from legal limbo. Even though these are common-sense protections, the polluters are sure to attack them. People who care about clean water need to make their voices heard in the comment period.”