As we begin to gather with our friends and family for Thanksgiving, I am reminded that it was a successful harvest that made this tradition possible. I owe many thanks for my Thanksgiving feast to the nation’s farmers, ranchers and foresters that made it all possible; not just once a year, but all year round. We rely on the land and water as we always have, but to continue to do so in the future requires deliberate and ongoing stewardship of these resources that support people, wildlife, and our economy.
Under the Clean Water Act (CWA), the U.S. Environmental Protection Agency regulates the discharge of pollutants and regulates the quality of our nation’s surface waters. However, the interpretation of recent court cases over “navigable waters” has muddied which waters are protected and which are not protected under the Clean Water Act. The split 2001 decision in Solid Waste Authority of Northern Cook County v. U.S. Army Corps of Engineers and the 2006 decision in Rapanos v. United States created unworkable confusion over what constitutes a “water of the United States,” protected by the Clean Water Act.
So, what is included under the term “navigable waters”, also known as “waters of the United States” (WOTUS), for which the Clean Water Act is responsible? The EPA and the U.S. Army Corps of Engineers are responsible for that definition and it has changed since 1972 as we gain more knowledge regarding the effect that even smaller, seasonal, or isolated water bodies can have on overall water quality. These types of waters impact drinking water for 1 in 3 Americans, yet they were not protected under the Clean Water Act until June of 2015 with the passing of the Clean Water Rule due to inconsistencies amongst the courts over which waters meet those requirements.
All citizens have a right to know, yet there is a lot of confusion about the Clean Water Rule. The rule will not trigger entirely new permitting requirements across agricultural lands; those are protected already under the CWA. Furthermore, the rule won’t affect the scope of agriculture, silviculture and ranching activities that are currently exempt from permitting. The rule will also not regulate every drop of rain. WOTUS encompasses defined water bodies, not ditches, landscaping, irrigation, etc. Because the Act leaves it to the agencies to define “water of the U.S.”, the EPA and the Corps only protect those waters that have scientific evidence showing that they have significant effects on the chemical, biological and physical makeup of downstream waters.
There have been numerous legal claims over the rule since this summer. The U.S. District Court of North Dakota temporarily won a case which initially left the 13 dissenting states without the protection of the rule. Since October, however, the Rule was put on hold nationwide after the Sixth Circuit Court stayed the rule, claiming there are potential problems with the portions of the rule and that the rule lacks scientific support. As a result, the nation’s water resources, especially the additional two million stream miles and 20 million acres of wetlands outlined in the Rule, are lacking adequate protection indefinitely until the courts work out a variety of issues surrounding jurisdiction, distance limitations of tributaries/adjacent waters, violations of authority/compliance with rulemaking processes, and ongoing requests for more scientific evidence.
A recent poll conducted by Greenberg Quinlan Rosner Research found that 83% of sportsmen and women think that the Clean Water Act should apply to smaller streams and wetlands, as the Clean Water Rule directs and view this as a needed safeguard rather than a burden. Not only will the rule have wide reaching implications for drinking water quality, but it also affects the sport fishing industry that accounts for 828,000 jobs, nearly $50 billion annually in retail sales, and an economic impact of about $115 billion each year that relies on access to clean water; overall, an improved bottom line for the nation’s outdoor industry.
The Clean Water Rule was produced as a result of feedback from more than 400 stakeholder meetings and an extended public comment period that collected nearly 900,000 public comments in support of the rule. Furthermore, the EPA connectivity report “reviews more than 1,200 peer-reviewed publications and summarizes current scientific understanding about the connectivity and mechanisms by which streams and wetlands, singly or in aggregate, affect the physical, chemical, and biological integrity of downstream waters”.
On December 8th, 2015, oral arguments in the Sixth Circuit Court will begin. It is crucial that both the Senate and House of Representatives realize the timely importance of the Clean Water Rule and actively support it. There are even two proposed bills in Congress that are threatening the implementation and enforcement of the Clean Water Rule.
With the support of 83% of sportsmen and women, the American Fisheries Society, American Fly Fishing Trade Association, Backcountry Hunters & Anglers, International Federation of Fly Fishers, Izaak Walton League of America, National Wildlife Federation, Theodore Roosevelt Conservation Partnership, Trout Unlimited, American Rivers, and Prairie Rivers Network to name of few, the Clean Water Rule has a growing audience that is eager to reap the benefits of clean water protections throughout the country.
Meghan Boian, Conservation and Government Relations Associate for American Rivers, supports the rule saying, “At the most basic level, the health of our rivers depends on the health of upstream waters. If a waterway is polluted, filled-in, or otherwise compromised the whole stream network will be adversely affected. Not only will the pollutants and fill material directly harm the water but the overall effects they cause will disturb the chemical, physical, and biological processes that keep our waterways healthy. It is important that we protect our rivers as well as their tributaries and wetlands in order to optimize the health of all our waterways. We are looking forward to all of the litigation being resolved and the Clean Water Rule being implemented in every state.”
As citizens we have a right to know which waters are protected and how it impacts our health because, regardless of who we are, we all need clean water. Despite some of the misinformation out there, the rule will create clarity and resolve debates for the effective implementation and enforcement of the Clean Water Act, safeguard valuable fish and wildlife habitat, preserve protections for farmers, ranchers, and foresters, in addition to synching water quality with economic prosperity.
If clean water or the food on your table this Thanksgiving is something you are thankful for, please tell Congress today that we cannot continue to wait to implement the Clean Water Rule!