Fully Restore Clean Water Act Protections for All Waters of the United States
By: Thomas Hynes
The Clean Water Act is intended to ensure our waters are safe for swimming, drinking, fishing, and other uses. However, the law cannot achieve these goals when categories of waters are excluded from its protections.
That’s what happened when the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) took several rulemaking actions that carved out certain waters from the definition of “waters of the United States” — the phrase that determines whether waters must be protected or allowed to be polluted and destroyed.
The most recent illegal deregulatory action dramatically eliminated Clean Water Act protections for the nation’s waters, but, thankfully, it was overturned in 2021. As a result, the longstanding definition of “waters of the United States” that protected the nation’s waters since the 1970s has been restored.
However, EPA and the Corps are proposing a new regulation that will place more non-scientific and illegal limits on those protections. These actions will once again leave many waters across the country unprotected against pollution and degradation.
But we have the opportunity to change that.
The Clean Water Act, and the federal clean water laws that preceded it back to 1899, protected traditionally navigable waters and all of their tributaries — i.e. waters that feed into them — against pollution and destruction.
However, under the proposed rule, EPA and the Corps are seeking to eliminate clean water protections for tributary rivers, streams, and other waters unless the waters are also “relatively permanent” or have a “significant nexus” to certain other types of waters. These new limitations will leave both newly excluded tributaries, and the downstream waters they are connected to, unprotected.
The Clean Water Act has also long protected other waters that lack connections to traditional navigable waters where their use, pollution, or destruction affects interstate commerce. This category includes waters of national importance, such as Oregon’s Crater Lake, and waters that are important for industrial production, commercial and recreational fishing or boating, and drinking water supplies.
In their proposed rule, however, EPA and the Corps want to effectively eliminate these protections by, again, imposing the “relatively permanent” and “significant nexus” limits on this category, which has the effect of requiring a connection to traditional navigable waters, interstate waters, and the ocean that these waters lack. This limitation is not supported by the law and will have disastrous impacts in many parts of the country.
For example, in New Mexico, closed basins — areas that lack connections to traditional navigable waters — that contain rivers, streams, wetlands, and other waters make up roughly 20 percent of the state’s land area. In Idaho, all of the waters within a more than 5,000 square mile area known as the Upper Snake River Closed Basins, including premiere trout streams and critical habitat for federally threatened bull trout, lack surface connections to traditionally navigable waters.
These waters are essential for recreation, fishing, and water supply in a region with scarce water resources, yet could lose protection under the proposed rule. It is essential that the pollution sources within these “closed basins” be controlled under the Clean Water Act.
There’s no legal requirement, prior case, or precedent to justify narrowing these protections as proposed by the EPA and Corps. On the contrary, their protection is central to achieving the objective of the Clean Water Act.