More than half of the miles of streams in the United States only have water flowing in them after it rains. But these intermittent creeks can contribute a significant amount of water pollution to rivers, lakes, and bays downstream, including the Chesapeake. So it is important that these smaller waterways be covered by the federal Clean Water Act, so that wildlife, outdoor recreation, and drinking water supplies are protected.
Unfortunately, murky U.S. Supreme Court decisions in 2001 and 2006 -- and subsequent interpretations by the Bush Administration -– effectively stripped Clean Water Act protections from not only many intermittent streams, but also isolated lakes, ponds, and wetlands.
On Tuesday, the U.S. Environmental Protection Agency and Army Corps of Engineers sought to clear up the confusion about what waterways are protected by the law. Under proposed new regulations, most seasonal and rain-dependent streams will be protected, as well as wetlands that are near streams and rivers, according to EPA.
“We are clarifying protection for the upstream waters that are absolutely vital to downstream communities,” said EPA Administrator Gina McCarthy. “Clean water is essential to every single American, from families who rely on safe places to swim and healthy fish to eat, to farmers who need abundant and reliable sources of water to grow their crops, to hunters and fishermen who depend on healthy waters for recreation and their work, and to businesses that need a steady supply of water for operations.”
Chesapeake Bay Foundation Vice President Kim Coble praised the federal government’s clarification, saying it will help clean up the nation’s largest estuary.
“The Chesapeake Bay Foundation welcomes the proposed new rule, which we expect to play an important role in protecting local waterways,” Coble said. “The health of seasonal and rain-dependent streams and wetlands near streams and rivers is crucial to the health of downstream waterways. This protection will help implement the region’s Clean Water Blueprint.”
Natural Resources Defense Senior Attorney Jon Devine noted that the EPA’s earlier interpretation of the 2001 Supreme Court decision led to scores of EPA water pollution investigations being abandoned. “ According to a New York Times investigative story, in a four-year period, more than 1,500 major pollution investigations of ‘companies that have spilled oil, carcinogens and dangerous bacteria into lakes, rivers and other waters [were] not being prosecuted,” Devine wrote in a blog article on Huffington Post. “As a consequence of the legal morass, an EPA analysis in 2011 said, ‘EPA enforcement managers have indicated that enforcement efforts are shifting from protecting small streams high in the watershed and instead are moving down river. In short, EPA is focusing efforts on larger streams and rivers, where there is more certainty of establishing jurisdiction.’"
The problem with this approach is that upstream pollution has a huge impact on downstream water quality. So it is difficult to clean up waterways like the Chesapeake Bay if the government has no authority over the small intermittent streams.
EPA should be applauded for moving to protect these streams and wetlands.
The proposed rule will be open for public comment for 90 days from publication in the Federal Register. For more information, click here.
By Tom Pelton
Chesapeake Bay Foundation
(Photo by Blair Seitz)