When Clean Water’s Not Clear
In 1972, federal lawmakers made a commitment to protect the “waters of the United States.” Thus began a heroic undertaking to turn our waterways from the flammable waste dumps of the 1960s into places where our children could swim again. And the resulting 1972 Clean Water Act was a landmark legislative achievement. But in recent years, polluters and their political allies have argued that certain language in the act―intended to provide the federal government with broad authority to prevent pollution―actually restricts that authority. Today it’s still not entirely clear which bodies of water are covered, and which are not.
In February, President Trump, backed by groups that represent corporate agriculture, developers, and other highly polluting industries, ordered the U.S. Environmental Protection Agency and the Army Corps of Engineers to consider changing the rules that spell out what the law protects. The President’s rhetoric in signing this order made clear he intended for the agencies to eliminate wide swaths of American waters from federal protection and dismantle a critical buffer that protects our lakes and rivers from pollution. EPA Administrator Scott Pruitt quickly began delivering on Trump’s order in June, when the EPA and the Corps proposed to revoke an Obama-era rule that clarified which waters are subject to the law.
It will ultimately fall to the courts, perhaps even the U.S. Supreme Court, to settle this dispute. And the justices will likely begin with this basic question: What did Congress mean by “waters of the United States” way back in 1972?
Given the nasty state of our environment in the early 1970s and the grossly inadequate efforts to prevent water pollution, it made sense for Congress to apply the Clean Water Act’s safeguards throughout watersheds, not just to bigger water bodies. Back then, iconic waterways like the Hudson River were contaminated with chemicals and littered with garbage. Ohio’s Cuyahoga River was so polluted that the surface caught fire (more than once). And it wasn’t just the rivers and lakes you know by name—America’s marshes, tributaries, and wetlands were contaminated, and they channeled their pollutants to much larger bodies of water.
By embracing the protection of all of the nation’s waters, Congress recognized that “[w]ater moves in hydrologic cycles and it is essential that discharges of pollutants be controlled at the source.”
That power was intended to be far-reaching. During the 1970s, federal lawmakers were united in their determination to reverse their environmental legacy, passing a wave of conservation laws that included the Clean Water Act, the Clean Air Act, the Resource Conservation and Recovery Act, and the Endangered Species Act. Broad consensus held that state and local governments could not protect the environment without significant help from the federal government. States didn’t have the money or the scientific expertise required, and without a federal baseline of safeguards the law would encourage a race to the bottom as states competed to attract industrial employers with lax regulation. The Clean Water Act explicitly envisioned a national leadership approach to clean water.
Executive agencies, in particular the EPA, took into account the ambitious conservation goals of Congress and appropriately interpreted the Clean Water Act’s coverage broadly. In the legal climate of the 1970s, that meant the federal government had strong authority to clean up waterways. Congress accepted this decision from the beginning, as did the U.S. Supreme Court in 1985. The federal government’s authority over our waterways was settled for nearly two decades.
In more recent years, however, persistent polluter attacks on the Clean Water Act succeeded in unsettling water protections. In two deeply divided opinions, in 2001 and 2006, the Supreme Court upended the implementation of the Clean Water Act. In the more significant of the two cases, the nine justices couldn’t form a majority to identify those bodies of water meriting protection under the act. For the next 10 years, even expert scientists and lawyers who focused on water quality did not understand the limits of the country’s most important water protection law.
The Obama administration came to the rescue in 2015. After years of research and public comment, the EPA published a clarifying regulation that came to be known as the Clean Water Rule. It determined that the landmark 1972 law provides federal protection for most wetlands, marshes, and tributaries that perform important functions. It also reaffirmed historic protection to waters adjacent to waterways covered by the act, because pollution travels.
The rule provided exactly what big business and conservative politicians extol so frequently—regulatory certainty. However, Big Ag and other corporate lobbying groups opposed it. And in doing so, they showed a preference for hazy laws they can mold to their advantage rather than responsible and predictable regulation. Meanwhile, Republican politicians and their allies—including EPA Administrator Scott Pruitt—also criticized the rule through wildly incorrect statements, such as the claim that the Clean Water Rule gives the EPA authority over puddles. (It explicitly excludes puddles.)
The Trump administration has now officially proposed to repeal the Clean Water Rule. If this effort succeeds, it will plunge the environment and the rule of law back into the decade of confusion and uncertainty that preceded the rule. The administration claims it will issue its own clarifying regulation, but its track record on acting responsibly in the public’s interest is not good, and early indications are that the rule it intends to pursue would radically roll back protections and make them weaker than even the pre–Clean Water Rule approach.
The proposed repeal of the Clean Water Rule is a potential disaster. Roughly 60 percent of streams in the United States flow only seasonally or after rainfall. (That’s nearly two million miles of streams.) It’s possible that Trump will attempt to remove those from federal protection, and thereby threaten our drinking water, since one-third of all Americans get their supply from headwater, seasonal, and rain-dependent streams. Weakening regulation of streams and wetlands also puts at risk billions of dollars in recreational fishing, swimming, and tourism spending.
Congress moved to protect the “waters of the United States,” rather than naming individual bodies of water, because legislators understood that water is wild. It flows and intermingles, right into our taps and into our children’s bodies. Segmenting regulation of our water is a mistake of historic proportions.
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