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

The Compleat Wetlander: Clean Water Act Jurisdiction, Polluters and Clean Water

Our nation’s economy relies on a supply of abundant clean water.  That means we need both clean water and a lot of it.  Dirty, polluted water is expensive.  But often, not to the polluter.  If laws are not in place to hold polluters accountable, then the public at large must bear the cost – either to clean the water up, or to suffer the health consequences that result from exposure to polluted water.  And that’s just people.  Polluted
cw718141water also affects wildlife, ecosystems, and the web of life that we also depend on.

It was early last fall that the release of  “Connectivity of Streams and Wetlands to Downstream Waters:  A Review and Synthesis of the Scientific  Evidence” signaled the intention of the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers’ to promulgate a rule to revise Clean Water Act jurisdiction.  Since then, there has been a great deal of press about the proposed rule.  Many of these stories have focused on public pronouncements by various elected officials and interest groups of support or criticism (mostly criticism) for the proposed rule.  Largely absent from the discussion has been thoughtful reporting on what is happening to streams, rivers, lakes, wetland and estuaries, and the ability, or lack thereof, of the Clean Water Act to support clean water given current uncertainties over jurisdiction.

cw718142Let’s not forget that the Clean Water Act is triggered when there is pollution.  A retraction of Clean Water Act jurisdiction has occurred since the  SWANCC and Carabel/Rapanos Supreme Court decisions in 2001 and 2006 respectively.  The current jurisdiction rule reflects jurisdiction BEFORE these decisions.  The purpose of the proposed rule is to formalize the narrowing of jurisdiction.   Wetlands are the resources that are most at risk as a result of the Supreme Court decision, in particular wetlands not adjacent to navigable waters that must meet the significant nexus test.  That is, it must be determined that the wetland has a substantial impact on navigable waters.  It has been that way since 2001.  It remains that way for wetlands outside floodplains under the proposed rule. And it is a very difficult test to meet.

cw718143But current challenges to protecting and improving water quality – providing clean water – go far beyond the removal of protection from millions of acres of wetlands.  There are significant problems for other waters.  A 2009 report by EPA determined that over half the Nation’s rivers do not support healthy populations of aquatic life, largely due to the presence of excess levels of nitrogen and phosphorus (click here).
This year’s ‘Dead zone” in the Gulf of Mexico is expected to be the size of Connecticut (click here). The infrastructure that is used to treat water for human consumption is nearing the end of its useful life (click here) and so are the sewage treatment systemsthat carry wastewater cw718144from residences and businesses for treatment before discharging to streams and rivers (click here)In addition, according to a recent Government Accounting Office report, most states anticipate water shortages will occur in the coming years (click here).

Plus, the federal government is collecting less and less information about where water is and what’s happening to it.  Stream gauges have been eliminated (click here), the National Wetland Inventory staff have been reduced to a skeleton crew and other sources of water data such as NOAA’s ocean and other data collecting  systems are annually at risk for cuts in funding.   This has profound implications for anticipating problems and areas most at risk during both floods, hurricanes, and droughts.

The states are well aware of these problems, because they bear the responsibility of dealing with these issues as well.  Between 2005 and 2008 state environmental spending increased as federal spending declined (click here). This occurred as regulations written by EPA have increased as the agency tried to keep pace with threats to the nation’s waters.  Simultaneously Congress has cut funding to EPA which in turn cuts funding to state water programs. This leads to more pollution.  The volume of contaminants removed from U.S. waters was cut in half – from 11.8 billion pounds in 2010 to 4.4 billion pounds in 2012 (click here). Current debate about the EPA budget for next year in Congress includes proposals for further cuts (click here).

The acrimonious debate of the proposed Clean Water Act jurisdiction rule is not so much a reflection of the merits or lack thereof of the proposed rule as it is a tragic symptom of the inability of our Nation’s  elected leaders to create a coherent national policy for both regulating and financing the protection of the nation’s waters.  Waters that are a precious and essential resource for all.


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