A watershed moment for US water quality

August 13, 2020

COLUMBUS, Ohio - A new federal rule that determines how the Clean Water Act is implemented leaves millions of miles of streams and acres of wetlands unprotected based on selective interpretation of case law and a distortion of scientific evidence, researchers say in a new publication.

In a Policy Forum article published in the Aug. 14 issue of Science, the researchers assert that the Navigable Waters Protection Rule undermines the spirit - if not the letter - of the Clean Water Act by protecting only waters that have a permanent hydrologic surface connection to rivers, lakes and other large "navigable" bodies of water. Also omitted from consideration is maintaining the integrity of the biological and chemical quality of the nation's waters, protections that are explicitly called for in the Clean Water Act.

"It's so important to say, right out of the gates, that the new rule does not protect water in the way that the Clean Water Act was intended to protect water," said lead author Mažeika Sullivan, director of the Schiermeier Olentangy River Wetland Research Park at The Ohio State University.

The rule went into effect on June 22.

Left unprotected under the new rule are stand-alone wetlands across the country whose collective area is approximately the size of the state of West Virginia. Among the millions of miles of ephemeral streams - those that flow after precipitation events - losing federal protection are, for example, more than 95 percent of Arizona's streams, including many tributaries that flow into the Grand Canyon.

The change means that now-unprotected waters may be subjected to a variety of harmful human activities such as dredging or filling in waters for development, or even unpermitted dumping of industrial waste into streams or wetlands. Some potential results: higher risk for floods, loss of biodiversity, and threats to drinking water and recreational fishing.

"We're talking about major roll-backs in protections that limit activities that impair, pollute and destroy these systems," said Sullivan, also associate professor in Ohio State's School of Environment and Natural Resources, who co-authored the article with colleagues specializing in aquatic science, conservation science and environmental law.

"And it comes at a time when we're really starting to understand multiple stressors on water - not just urbanization or climate change or pollution, but how all these factors interact. And now we're removing protections and potentially undermining decades of taxpayer investment in improving water quality.

"It's a travesty, not just for us now, but for future generations. It could really be a watershed moment in that sense."

Legal battles have been waged for years over which non-navigable U.S. waters should be protected under the Clean Water Act, and the U.S. Supreme Court weighed in with opinions in a 2006 case. Justice Antonin Scalia argued that non-navigable waters should be covered by federal law only if they have a "relatively permanent" flow and a continuous surface connection to traditionally protected waters. Justice Anthony Kennedy suggested a non-navigable water body should be protected if it has a "significant nexus" to a traditional navigable waterway - meaning it can affect the physical, biological and chemical integrity of downstream waters.

In 2015, the Obama administration implemented the Clean Water Rule, which classified all tributaries and most wetlands as "waters of the United States" that fall under federal jurisdiction. At the heart of that rule was a Connectivity Report produced by the Environmental Protection Agency, backed by a review of more than 1,200 scientific publications and input from 49 technical experts. The science supported protection for isolated or intermittent systems that, if polluted or destroyed, would decrease water quality downstream. Sullivan was a member of the EPA Scientific Advisory Board that confirmed the scientific underpinnings of the report and the rule.

The language of the new Navigable Waters Protection Rule instead harkens back to Scalia's 2006 opinion, protecting waters with "relatively permanent" surface flows and excluding from federal jurisdiction all groundwater and all ephemeral bodies of water, as well as others.

"So what's extremely concerning from a policy standpoint is that the federal government is, at least in part, leaving science aside," Sullivan said. "This idea of connectivity is one of the most crucial components of the science that has largely been ignored in this rule. There are magnitudes of connectivity - it could be frequency or how long it lasts. There are also different types of connectivity: biological, chemical and hydrologic.

"Further, just because a waterbody may be less connected to another doesn't necessarily mean it's less important for water quality."

For human recreation and well-being, Sullivan said, small streams and wetlands are critical, both in their own right, as well as because they support larger, downstream ecosystems such as rivers, lakes and reservoirs.

"There are tendrils that extend into every aspect of our lives, from how we recreate and how we live, to our economy, with cultural implications for a lot of folks in the U.S. Water is fundamental to people's sense of place and where they belong," he said.

Sullivan and colleagues cited an April 2020 Supreme Court decision that may influence outcomes of the more than 100 pending lawsuits filed in opposition to the new rule. In County of Maui v. Hawaii Wildlife Fund, the court affirmed for the first time that pollutants that travel through groundwater and then emerge into surface waters are covered by the Clean Water Act.

Until the litigation is sorted out, the authors urged mobilization of grassroots efforts among watershed councils, other agencies and academics to conserve and protect water - a tall order, Sullivan acknowledged, when it comes to staying coordinated and coming up with resources.

"We're going to have to start thinking about this in a very different way," he said. "Everybody needs clean water, right? This isn't a political issue."
-end-
Co-authors of the article include Mark Rains of the University of South Florida, Amanda Rodewald of Cornell University, William Buzbee of Georgetown University and Amy Rosemond of the University of Georgia.

Contact: Mažeika Sullivan, Sullivan.191@osu.edu; 614-688-8402

Written by Emily Caldwell, Caldwell.151@osu.edu; 614-292-8152

Ohio State University

Related Climate Change Articles from Brightsurf:

Are climate scientists being too cautious when linking extreme weather to climate change?
Climate science has focused on avoiding false alarms when linking extreme events to climate change.

Mysterious climate change
New research findings underline the crucial role that sea ice throughout the Southern Ocean played for atmospheric CO2 in times of rapid climate change in the past.

Mapping the path of climate change
Predicting a major transition, such as climate change, is extremely difficult, but the probabilistic framework developed by the authors is the first step in identifying the path between a shift in two environmental states.

Small change for climate change: Time to increase research funding to save the world
A new study shows that there is a huge disproportion in the level of funding for social science research into the greatest challenge in combating global warming -- how to get individuals and societies to overcome ingrained human habits to make the changes necessary to mitigate climate change.

Sub-national 'climate clubs' could offer key to combating climate change
'Climate clubs' offering membership for sub-national states, in addition to just countries, could speed up progress towards a globally harmonized climate change policy, which in turn offers a way to achieve stronger climate policies in all countries.

Review of Chinese atmospheric science research over the past 70 years: Climate and climate change
Over the past 70 years since the foundation of the People's Republic of China, Chinese scientists have made great contributions to various fields in the research of atmospheric sciences, which attracted worldwide attention.

A CERN for climate change
In a Perspective article appearing in this week's Proceedings of the National Academy of Sciences, Tim Palmer (Oxford University), and Bjorn Stevens (Max Planck Society), critically reflect on the present state of Earth system modelling.

Fairy-wrens change breeding habits to cope with climate change
Warmer temperatures linked to climate change are having a big impact on the breeding habits of one of Australia's most recognisable bird species, according to researchers at The Australian National University (ANU).

Believing in climate change doesn't mean you are preparing for climate change, study finds
Notre Dame researchers found that although coastal homeowners may perceive a worsening of climate change-related hazards, these attitudes are largely unrelated to a homeowner's expectations of actual home damage.

Older forests resist change -- climate change, that is
Older forests in eastern North America are less vulnerable to climate change than younger forests, particularly for carbon storage, timber production, and biodiversity, new research finds.

Read More: Climate Change News and Climate Change Current Events
Brightsurf.com is a participant in the Amazon Services LLC Associates Program, an affiliate advertising program designed to provide a means for sites to earn advertising fees by advertising and linking to Amazon.com.