People can live without a lot of things. But clean water is not one of them. The Clean Water Act is the primary legal framework for regulating pollutant discharges into the waters of the United States.
Now, recent efforts by the EPA may redefine which US waterways receive protection under the Clean Water Act. If they succeed, nearly 60% of the nation’s water could lose this defense.
Clean Water Act
The first federal legislation to limit water pollution was the Federal Water Pollution Control Act of 1948, establishing major statutory provisions with regard to water protection. The Clean Water Act, drafted in 1972, created guidelines for wastewater treatment, effluent guidelines and a framework for monitoring water health. Numerous revisions – 1977 and 1987, most notably – have further enhanced the provisions set forth in 1972. Still, Americans argue about just how much of our water is protected under the Act. The source of the confusion is in the Act’s terminology, which refers to “waters of the United States” and “navigable waters” without defining either term.
In United States v. Riverside Bayview Homes, the Court deferred to the Corps of Engineers’ ecological judgment that wetlands are “inseparably bound up” with the waters to which they are adjacent, and upheld the inclusion of adjacent wetlands in the regulatory definition of “waters of the United States.”
In Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), the Supreme Court held that the use of “isolated” non-navigable intrastate ponds by migratory birds was not by itself a sufficient basis for the exercise of federal regulatory authority under the Clean Water Act.
Protection of isolated wetlands was the crux of the 2006 case before the US Supreme Court, Rapanos v. United States. The resulting opinions of the court – both majority and dissent – shed little new light on the definitions in question.
In 2015, the EPA published a final rule defining the scope of “waters of the United States” with respect to discharges of pollutants. Using the “significant nexus standard” for ecological and hydrological connections that was developed in the Bayview and SWANCC cases, the new rule established eight categories of jurisdictional waters. While providing clear definitions that would allow a determination of jurisdiction for any specific body of water, those definitions were widely perceived as greatly expanding the waters under the jurisdiction of the Clean Water Act.
The Proposed Changes
The Environmental Protection Agency has proposed a revised definition of “waters of the United States.” The proposed rule goes beyond the repeal of the 2015 rule and replaces pre-2015 regulations. Under the EPA’s new proposal, the only federally protected waters will be those adjacent to a major body of water or wetlands connected to a major waterway by surface water.
If the rule is finalized, landowners whose property contains water resources will be most directly affected, as previously protected waters could now be subject to development. Critics assert the new rule places critical habitat and recreational areas in danger of loss or damage by legal pollutant discharges. Availability and quality of drinking water could be at stake in some communities.
The EPA’s proposed new rule remained open for public comment through April 15, 2019. Legal challenges from environmental groups are almost inevitable if the rule becomes law. In the meantime, the Supreme Court looks to another case that hinges on the jurisdiction of the Clean Water Act.. That a permit is required to discharge a pollutant from a point source to a navigable body of water is well established. The pending case, County of Maui, Hawaii v. Hawaii Wildlife Fund will determine whether a permit is needed if that pollutant is conveyed by groundwater between the point source and the navigable water. If the new rule is approved before the Supreme Court case is heard, Maui County could have a much stronger argument that the wastewater is being discharged to a specifically excluded body of water.
While enforcement terminology debates continue in the courts, one thing becomes clear: protecting and preserving clean, healthy water is imperative.