Two Clean Water Act rollbacks: One murky mess for South Carolina waterways

Attacks on the Clean Water Act – repeal of the 2015 Clean Water Rule and changes to 401 Certification

The EPA’s recent attacks on the Clean Water Act have made national headlines, leaving many of us wondering how this impacts our local waterways and drinking water sources. The short of it: Our water resources are left vulnerable by these rollbacks.

BACKGROUND ON THE CLEAN WATER ACT AND THE 2015 CLEAN WATER RULE

The 1972 Clean Water Act (CWA) has been a crucial environmental safeguard used by state and local governments to protect clean water needed for healthy communities. South Carolina is one of many states that rely on the CWA, rather than state regulations, to protect our waterways from unchecked pollution and damage.

Congress enacted the CWA ‘‘to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,” recognizing the need for discharges of pollutants to be controlled at their source.[1] If the sources of major navigable waterways were not protected from pollution and damage, Congress realized that it could not accomplish the CWA’s primary goal — polluters could release toxins into headwater streams, wetlands, or even groundwater, which would wash down into larger waters downstream.

Despite controversy surrounding three Clean Water Act rulings, the Supreme Court has consistently agreed that the geographic scope of the CWA reaches beyond waters that are navigable (United States v. Riverside Bayview Homes, 474 U.S. 121 (1985); Solid Waste Agency of Northern Cook County (SWANCC)  v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001); and Rapanos v. United States, 547 U.S. 715 (2006)). In these three cases, the Supreme Court recognized that upstream headwaters and wetlands significantly affect the chemical, physical, and biological integrity of downstream waters by providing vital services like sediment control, pollutant filtration, floodwater retention, and wildlife and fish habitat.

The 2015 Clean Water Rule interpreted the CWA to cover the headwaters and wetlands that require protection in order to restore and maintain the chemical, physical, and biological integrity of larger water bodies (i.e., traditional navigable waters, interstate waters, and territorial seas). In protecting smaller tributaries and wetlands that hydrologically affect navigable waters, this rule protected drinking water sources for over 200 million Americans, according to the Southern Environmental Law Center.[2]

Rollback #1: Repeal and Replacement of the 2015 Clean Water Rule (the “WOTUS” Rule)

In 2019, the EPA proposed to change a key term in the Clean Water Act: “Waters of the United States” (WOTUS), which defines the types of water bodies that qualify for federal protection. WOTUS are federally protected from unchecked pollution and harmful activities such as filling in wetlands and streams and discharging pollutants into waterways. This effort was part of a two-step “repeal and replace” strategy outlined by Executive Order 13788 back in 2017.

On January 23, 2020, the EPA and Army Corps of Engineers finalized the Navigable Waters Protection Rule to replace the 2015 Clean Water Rule — also known as the WOTUS rule, although the term WOTUS existed prior to the 2015 rule.

This rule narrows the definition of WOTUS to four categories of federally protected (jurisdictional) waters, excluding ephemeral waters (features that flow after rain or snowmelt), smaller tributaries without direct surface water connections to navigable waters, and wetlands not connected to navigable waters. At its core, this rule fundamentally misrepresents basic watershed science that tells us that our waterways are critically interconnected.

The issue over groundwater

Some critics of the 2020 Navigable Waters rule argue that the exclusion of groundwater from the WOTUS definition is fundamentally at odds with the purpose of the CWA.  To set the record straight: Groundwater as a whole was never considered a Waters of the US in the 2015 Clean Water Rule. The EPA’s longstanding interpretation, however, is that direct discharging of pollutants is subject to the CWA when that discharge moves through groundwater to reach a federally-protected water body.[3]  This interpretation has been supported by the majority of courts who conclude that it was not the intention of Congress to exclude discharge into hydrologically connected groundwater that adversely affects surface water.[4]

Expect more uncertainty in 2020

While the EPA claims the 2020 rule will provide greater certainty for landowners and farmers (whose waters were never regulated under the CWA (see Upstate Forever's April 2019 blog post on the CWA rollbacks for details), this rule is likely to be placed on hold by federal courts in several states as litigation makes its way through the courts. This leaves developers and other industries wondering how much risk they’re willing to take on while waiting for the years-long legal battles to play out.

What we do know is that if this rule stands, it would create dumping grounds for pollution dangerously close to our communities. Take ephemeral streams, for example. While these kinds of waterways don’t flow consistently, significant rain events can carry pollution downstream into larger waterways, in turn polluting favorite swimming holes, wetlands, and drinking water intakes.

The EPA’s own Science Advisory Board warned in a December 2019 report that the rollback neglects established science that shows how contamination of groundwater, wetlands, and small tributaries can spread to drinking water supplies.[5] The board claimed it found no scientific justification for cutting protections for these waterways. 

Speaking at the National Association of Home Builders International Builders’ Show in Las Vegas, EPA Administrator Andrew Wheeler touted the new rule as an answer to questions of uncertainty surrounding WOTUS criteria, and that it will give states greater authority over their waterways. In reality, most states are unlikely to fill the void with their own water protections. In reality, the desire to give states more authority is in direct contrast to the next federal rollback: changes to the 401 water quality certification.

Rollback #2: Changes to water quality certification under Clean Water Act Section 401