Though the EPA’s new “Clean Water Rule” updates the 43-year-old Clean Water Act, it fails to help Westerners because it is too weak to protect our region’s lakes, rivers and streams. The rule was the product of an EPA-appointed, 52-member Science Advisory Board, which reviewed and made use of 1,200 scientific articles on protecting rivers, lakes, and streams across America. However, the EPA ignored part of the board’s advice on key areas of concern to Westerners.
Obama’s new rule leaves thousands of mountain streams in the mountainous West and arid Southwest more vulnerable to pollution. It decreases the number and amount of rivers and water protected, contains significant new exemptions and loopholes for corporate polluters, and lacks the clarity needed to prevent the case-by-case determinations that have exposed Americans to polluted waterways nationwide.
First and most important for Westerners, Obama’s new rule did not adopt the Science Advisory Board’s recommendation to include language about what defines a “tributary” and a “perennial, intermittent, or ephemeral stream.” In a semi-arid environment like the Southwest, the majority of streams in the mountains and across the plains only flow intermittently during the late spring and summer, after the snow melts. But it’s extremely important to protect these ephemeral streams because they flow into (are “tributary” to) the year-round flowing rivers and streams across the state.
Unfortunately, the rule states that “the agencies did not make this (rule) change” for “ephemeral streams with arid and semi-arid environments.” That means many streams in the Western United States will remain in limbo: Are they, or are they not, protected by the Clean Water Act? This might well result in more case-by-case determinations and lengthy delays as the courts get to decide what is a stream and what is not.
Second, the new rule clearly and emphatically states that fewer miles of streams and less water are now protected than under the previous Clean Water Act regulation. In fact, the rule’s preamble says: “The scope of jurisdiction in this rule is narrower than that under the existing regulation. Fewer waters will be defined as ‘waters of the United States’ under the rule than under the existing regulations, in part because the rule puts important qualifiers on some existing categories such as tributaries.” This narrowing will certainly cause more of the West’s streams to lose protection.
Finally, the new rule contains several new exemptions and loopholes that may allow corporate polluters to further degrade America’s waterways. New exemptions and loopholes now exist for the factory farm and the fossil-fuel industries. The rule states: “The agencies for the first time also establish by rule that certain ditches are excluded from jurisdiction. …” The type of ditches described in the exclusion are those that can flow intermittently from factory farms and fracking sites and end up in our waterways in the West.
These exemptions may make some problems dramatically worse. This is just one example out of hundreds of examples across the West: At the confluence of the Cache la Poudre and South Platte rivers in Colorado, there sits a massive feedlot almost a square mile in size. A ditch runs out of that feedlot directly into the South Platte River. Now, thanks to the EPA’s new rule, it is not certain how the ditch will be defined. If the EPA’s new rule decides that it’s ephemeral, it will not be protected by the Clean Water Act.
It is known that as the South Platte River heads toward Nebraska, it is filled with pollution from fertilizers and pesticides, making the river a significant contributor to the 5,000-square-mile “dead zone” of nitrates in the Gulf of Mexico.
President Obama had a huge opportunity to protect the West’s water from corporate polluters and make sure every waterway is drinkable, swimmable and fishable. Unfortunately, his administration’s new clean water rule weakens protections for our waters and creates new categorical exemptions and definitional requirements that are more likely to lead to more litigation in our courtrooms rather than cleaner water in our lakes, rivers and streams.
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Gary Wockner is a contributor to Writers on the Range, a column service of High Country News (hcn.org). He is the waterkeeper for the Cache la Poudre River of northern Colorado.