Association of State Wetland Managers - Protecting the Nation's Wetlands.

For Peat’s Sake: Water, Water, Every Where, Nor Any Drop to Drink

For Peats Sake LogoBy Marla J. Stelk, Policy Analyst, ASWM

We live in a very interesting time. On one hand, we are experiencing extreme precipitation events that are producing massive amounts of water and thereby causing devastating floods in the country’s interior. Sea levels are rising and hurricanes are increasing in intensity, causing damaging floods along our coasts. water52814-1And yet, at the same time, the western states are facing an increasing severity of droughts and wildfires and our inland water bodies are dying a slow death from algal blooms. So some states have no water, and in the states where we have an abundance of water, much of it is unpotable.

Duke Energy in North Carolina, the country’s largest electricity company, pled guilty to violating the Clean Water Act this month and contaminating clean drinking water wells with toxic heavy metals from coal ash.  They are supplying residents with bottled water until it gets cleaned up – and it is not their first incident. Just last year they spilled 82,000 gallons of ash into the Dan River. In West Virginia last year, Freedom Industries had a disastrous chemical spill in Elk River just upstream from a drinking water intake that serves 300,000 people. And in Toledo, Ohio last year there were drinking water bans due to toxic levels of microcystin produced by algal blooms around Western Lake Erie due primarily to agricultural practices. Even water that goes through water treatment plants has been found to be laden with pharmaceuticals. And these are just the clean water crises that made the biggest headlines.

water2052815According to the Groundwater Foundation, more than 50% of the people in the U.S. rely on groundwater for their drinking water supply.  American Rivers reports that 65% of people in the U.S. get their drinking water from rivers and streams. And according to the U.S. Environmental Protection Agency (EPA), of the 357,404 total miles of streams in the continental U.S. that provide drinking water for 117 million Americans, 58% of them are intermittent, ephemeral or headwater streams – in other words streams that do not flow year round.

Wetlands are most often found at the interface of where water bodies, such as rivers and streams, connect to the land and their unique position on the landscape positions them strategically to filter out contaminants that often flow into our drinking water sources.  Many of these wetlands and streams have not been protected since the scope of the Clean Water Act was narrowed more than a decade ago by two U.S. Supreme Court cases, SWANCC in 2001 and Rapanos in 2006. These two cases also created a lot of confusion regarding how to determine Federal jurisdiction over our nation’s waters.  Interestingly, after achieving “no net loss” and even a modest net gain in wetland acres nationally from 1998-2004, annual wetland losses increased between 2004-2009.

To provide better clarity regarding Federal jurisdiction, what is included in the definition of “waters of the U.S.” and to better protect our nation’s water resources, the EPA and the Army Corps of Engineers (ACOE) developed the proposed Clean Water Rule. While the final rule provides greater clarity, it also formally recognizes that millions of acres of wetlands are no longer protected under the Clean Water Act unless a case by case significant nexus to traditionally navigable waters can be established.  This is a consequence of the SWANCC and Carabell/Rapanos Supreme Court decisions that is only now being incorporated into the regulatory definition of waters of the U.S.  The existing definition has been incorrect for over a decade.   In reaction to the proposed Clean Water Rule (which was just released as the final Clean Water Rule this week), the U. S. House of Representatives and the U.S. Senate have proposed legislation to require EPA and the Corps to abandon the new rule and start over.  In addition, the bill in the Senate (S.1140) would significantly reduce the waters currently and historically protected under the Clean Water Act.  The Senate bill would remove  Clean Water Act  protections from virtually all wetlands as well as many rivers and streams which are critical for clean water provision, flood water absorption, and groundwater recharge among many other beneficial functions.

water852815For example, one of the provisions of the Senate bill (S.1140) would require the use of the National Hydrography Dataset Plus at the 1:100,000 scale from Reach Address Database Version 3.1 to determine whether or not a particular reach of a stream is protected under the   Clean Water Act. This is a coarse resolution dataset that generally only captures stream reaches that are longer than a mile.

To give you an idea of how the requirement to use this map would limit jurisdiction, take a look at the map to the right.  It is a map of perennial and intermittent streams.  The lines in white show perennial and intermittent streams that were mapped using NHD Plus. The lines in black are perennial and intermittent streams that were mapped using LiDAR (LiDAR is a remote sensing technology that generates “precise, three-dimensional information about the shape of the Earth and its surface characteristics.” – NOAA).

You can see that many streams are not covered by the NHD 1:100,000 scale and therefore would not be protected by the Clean Water Act if S.1140 became law. The map above also illustrates the connectivity of intermittent and headwater streams to primary stream systems. Whatever happens upstream impacts the quality and quantity of waters downstream. Science clearly shows that these systems are all connected physically, biologically and chemically. The Clean Water Act was written to protect the physical, biological and chemical integrity of our nation’s waters.

States have the ability to develop more comprehensive protections for waters left out of Federal jurisdiction.  However, historically they have often been encouraged by members of the regulated public and their own state laws to implement their water programs consistent with Federal law.  The Environmental Law Institute published a 50 state summary in 2013 in which they found that 36 states “have laws that could restrict the authority of state agencies or localities to regulate waters left unprotected by the water5052815federal Clean Water Act.”  In some states this might merely mean that state environmental agencies are required to explain to their state legislature why they are protecting areas not protected under Federal law.  But in other states such as Idaho and South Dakota, the state is prohibited under state law from protecting waters in the state unless the Federal government does so as well.

Amid all of this activity, I can’t help but be reminded of the ancient mariner in Samuel Taylor Coleridge’s epic poem as he lamented, “water, water, every where, nor any drop to drink.” So for Peats’ Sake, let’s let science inform policy, and let’s work together to protect our incredibly important water resources.

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