Clean Water Act is not a Universal Tool

Under the Clean Water Act, Congress explicitly directed the Agencies to protect “navigable waters.” Under the Clean Water Act, “the discharge of any pollutant by any person shall be unlawful.” 33 U. S. C. § 1311(a). “The discharge of a pollutant” is defined broadly to include “any addition of any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12).

The Clean Water Act (CWA) of 1972 made it a crime to discharge pollutants from any point source into the "navigable waters of the United States." However, the U.S. EPA has continually tried to expanded what constitutes a "pollutant" or "navigable water" over the years. Especially in this century, the U.S. EPA attempted to manage new problems by illegally expanding the reach of old laws. This is wrong.

In 2015 the U.S. EPA attempted in defiance of the law’s own limits to expand protection and regulation under the 1972 Clean Water Act to include ephemeral streams, regardless of their size of frequency of flow, wetlands and open waters not in riparian areas and the 100 year floodplains; and to expand the definition of pollution to non-point sources of contamination including fill dirt and soil erosion. That version of the Waters of the United States was implemented under executive authority of President Obama and unleashed a torrent of Federal litigation.

Thirty-one states, many local governments, and private industry filed suite asserting that the rule unconstitutionally expanded the Clean Water Act’s reach and misapplied several Supreme Court decisions and long standing practice. The cases were consolidated before the Sixth Circuit in Cincinnati, which granted a nationwide wide stay in November 2015.

With that stay in place the Trump administration withdrew the rule. On January 23, 2020, the U.S. EPA and the Department of the Army (Army) released their Navigable Waters Protection Rule to define “waters of the United States” (WOTUS). Their rule lists four clear and common sense categories of waters that are considered “waters of the United States:”

1. Territorial seas and traditional navigable waters (TNWs)
2. Tributaries and intermittent rivers and streams that contribute surface flow more often than just after a single precipitation event.
3. Lakes, ponds, and impoundments of jurisdictional waters are jurisdictional where they contribute surface water flow either directly or through channelized non-jurisdictional surface waters, through artificial features, or through natural features.
4. Wetlands that physically touch other jurisdictional waters are “adjacent wetlands.”

This restored what could be regulated under the law to point source pollution discharge into rivers, lakes, streams and adjacent wetlands. Last month Science.org published an article by S. Mazeika Patricio Sullivan et al “Distorting science, putting water at risk (1)” damning the new rule as “inconsistent with science and (will) compromise the integrity of U.S. waters.” They are wrong in thinking expansion of the reach of the Clean Water Act is the way to manage the sustainability, availability and quality of the water ecology. Yes, wetland and ephemeral stream need legal protection, but they need protection from destruction not from point source discharge of pollutants.

I repeat, the Clean Water Act of 1972 made it a crime to discharge pollutants from any point source into the navigable waters of the United States. The regulation was intended to stop the free discharge of sewage and industrial waste into our rivers an it does that.

The authors of the Science article believe that hanging the law by expanding the definition of navigable waters to include wetlands, seasonal streams and any water that might at any time during the year impact or reach the navigable waters of the United States though any ecological means and ignoring the Clean Water Act’s requirement of a point source pollutant is necessary to protect the ecological benefits provided by these non-floodplain wetlands and ephemeral streams. In their zealousness the Science article authors would create a regulatory scheme that  is not only illegal but could be capriciously applied,  and as we’ve seen signed into law and signed out of law.

There needs to be a reasonable, obvious and consistent standard for navigable waters of the United States to protect them from industrial and waste water discharge. Over expansion of the definition of Waters of the United States would result in inconsistent determinations and a Kafkaesque regulatory process. That is unacceptable in the United States of America.

The proper way to protect the wetlands and seasonal streams that we now understand are so essential to a balanced ecology and healthy rivers and streams are regulations for the application of fill material, land use, non-point source pollution and other local issues. These are not issues address under the Clean Water Act. These are properly addressed on the state and local level. The Clean Water Act is the wrong tool. To speed the process for the national acceptance of these kinds of laws, Congress needs to act to create the basic framework for laws to protect the sustainability of our water resources for our future.

You can read the Science article for free  at https://science.sciencemag.org/content/369/6505/766.abstract

1. S. Mažeika Patricio Sullivan, Mark C. Rains, Amanda D. Rodewald,William W. Buzbee, Amy D. Rosemond; Distorting science, putting water at risk, Science  14 Aug 2020:, Vol. 369, Issue 6505, pp. 766-768 DOI: 10.1126/science.abb6899.