Since its major amendment in 1972, the nationally enforced Clean Water Act (CWA) has greatly restricted the amount of contaminants entering navigable open surface waters in America by setting a wastewater standard for industries and businesses. Not only has this improved water conditions to meet the needs of people, the environment has benefited as well.
However, confusion about what the CWA covers arose during the trials of Supreme Court cases SWANCC (2001) and Rapanos (2006). The major questions that emerged during the cases were these: Does the CWA protect certain bodies of non-navigable open surface waters, such as small streams and tributaries, that eventually feed into navigable open surface waters? Also, exactly how far does the CWA’s coverage extend?
Because the Act did not clearly define what bodies of water are protected, troubles arose for the EPA when it attempted to enforce the law in many cases. As much as 500 cases have been dropped or had priorities lowered in the years 2006-2007 alone because of the ambiguous definition of what is protected under the CWA. Without specifying what bodies of waters are covered, about 60 percent of America’s streams and 20 million acres of wetlands are at risk of losing protection. This is water that more than 117 million Americans use for drinking.
The newly implemented Clean Water Rule was designed to improve water protection by addressing this issue of ambiguity. The rule now precisely defines bodies of waters that were historically covered by the CWA. Specifically, the rule now provides comprehensible definitions on what types of tributaries, adjacent wetlands and waters, and isolated waters are protected by the CWA. Exclusions are also defined.
Some states, business, agriculture, and real estate developer groups are opposed to this new rule. They expressed concern that the new rule grants too much power to the federal government and that it can allow the EPA to step over its bounds. U.S. District Court Judge Ralph Erickson of North Dakota blocked the new rule in a total of thirteen states by requesting an injunction hours before the rule was set to take effect. These states are Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, New Mexico, Nevada, South Dakota, North Dakota, and Wyoming. Dakota Attorney General Wayne Stenehjem praises the injunction and hopes to see the Clean Water Rule overruled. He was quoted, “I am very pleased by today’s ruling, which protects the state and its citizens from the serious harm presented by this unprecedented federal usurpation of the state’s authority.”
This overruling continues to bar protection to Americans living in these states who obtain their drinking water from sources that could have otherwise been protected with this new rule. Regardless, the EPA stated that the new rule has been in effect since August 28th, 2015 in the remaining states that are not involved in the lawsuit. The EPA and Army Corps, who work together to implement the rule, state that the rule was developed to make definitions under the CWA easier to understand after previous court cases did not clearly define what bodies of water, such as small waterways or non-navigable open surface tributaries, are protected.
Requested input from environmental justice stakeholders was used when developing the Clean Water Rule. Over one million public comments were listened to in order to help better clarify what waters are protected by the CWA. The rule proposes that it will positively impact at risk populations and low income communities by enhancing key roles given to states and tribes when implementing their respective CWA programs. With smaller bodies of waters, such as streams, being covered, the Clean Water Rule has the potential to help clean water sources once unspecified by the CWA. Small urban and rural communities who depend on these water sources for consumption, bathing, recreation, and business could benefit from this new clarity in the Clean Water Act by reducing exposure to contaminants and chemicals.