A friend pointed out that stuff is happening with regard to federal protection of clean water … and perhaps I should write about it. That was last week, when the Dungeness River drought was the main topic on my mind.
But seeing headlines about the Clean Water Act and also seeing loads of water quantity coming from the sky I decided it’s a good time to catch up on water quality.
What is happening to clean water and how are we affected here?
Back when rivers in the rust belt of the U.S. were catching fire due to their chemical pollution load, Congress responded with the Clean Water Act of 1972 with the purpose “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”
The Act resulted in a new permit requirement for most industries and communities releasing waste into “Waters of the United States.” Two federal agencies, EPA and the Army Corps of Engineers, would set standards for pollution prevention while state agencies would implement and enforce the permits.
Even to the bureaucratically uninitiated that probably sounds tricky, but Congress was optimistic.
The Act was broadened by Congress in 1987 to include “non-point” sources of pollution to our waters, such as rain runoff from city streets and agricultural areas. Local jurisdictions and large private properties also now need the permit.
One nagging question kept cropping up – what exactly were and were not “waters of the U.S.?” Some sections of the Act used the qualifier “navigable,” such as rivers and lakes, but where was the line?
How far up the navigable river channel is it okay to dump raw sewage or petroleum byproducts?
By the 1990s the Supreme Court deemed that Congress’ “navigability” implied a direct relation to commerce. But the Court also extended protection to waters with a “significant nexus” to navigable waters. It was soon widely accepted that to restore and maintain the integrity of downstream rivers and lakes, their non-navigable headwaters needed protection, too.
All good, until another word was tested in the courts: what makes a connection “significant?”
Is it okay for copper mine tailings to seep into the ground if the groundwater downhill springs out to form a stream, which is connected to navigable waters?
This time Supreme Court ruling lacked a majority, which added to the havoc. The EPA and Corps were tasked by the Obama Administration with clarifying which waters should be governed by the Clean Water Act.
The agencies spent years looking at court precedents and getting input from scientists and the public on when wetlands, ditches, intermittent streams and other “hydrological and ecologically connected” waters should fall under the Act’s scope.
They published a draft rule and took comments for more than half a year, and finalized the “Clean Water Rule” in June 2015, to be effective on Aug. 28, 2015. Pretty close to four years ago …
It was unfortunate timing for such a lengthy endeavor. The new and complicated agency-originating rule was a political football for eager Presidential candidates. After all, wetlands and isolated ponds are increasingly the only open lands left undeveloped and many would be automatically regulated under the new Rule.
The Clean Water Rule was challenged and “stayed” by appeals to circuit courts in late 2015. Candidate Trump promised to repeal Obama’s Rule and in fact in his second month of office wrote an executive order to “review and rescind or revise” the regulations.
By now the stately phrase “waters of the United States” had been reduced to an acronym, “WOTUS.”
At this point the stages get harder to comprehend but the direction is very clear. Legal challenges have resulted in the crazy situation we have at present: the 2015 Rule was repealed last year but 22 states, Washington included, currently regulate using that definition of waters of the U.S. while the others use the pre-existing definition.
The current EPA and Corps will soon finalize a nation-wide rule with a third definition of WOTUS that is “simpler and clearer” – but is certainly without anything close to the scientific review of the 2015 Rule. Given its origin, and regardless of the details, the opposition is already drafting lawsuits.
No clarity anytime soon
Bell Creek and other small headwaters of our watershed are intermittent streams. I can assure you it is possible for hydrologists and ecologists to establish the importance of those headwaters to their downstream waters, including groundwater, springs, estuaries and navigable bays. The question is, will science be used to implement the Clean Water Act?
Regarding Congress’ interest in commerce, the economic cost of pollution is not fully measured. Will the costs be counted that are paid by consumers and taxpayers when water and air pollution affects our health and that of the natural resources we depend on?
Congress is the only branch of government authorized to make law. Agencies follow the whims of the Oval Office and the Courts produce scattershot precedents, but not laws. The muddy status quo has confused lawmakers, courts, scientists and the general public. In a nation that genuinely cares about clean water, we can surely do better.
Should Congress clarify and define waters of the U.S. once and for all? Congressional action may be what it takes for the Clean Water Act to be anything more than an act.
Greywolf Ridge sits sentinel over the Dungeness Valley. From downtown Sequim you can see one lonely patch of distant snow on the Ridge, just to the left of the shoulder of Deer Ridge, which descends eastward from Blue Mountain. Between these two ridges is a gap where formerly-glaciated Mount Cameron is visible, at the very top of the Dungeness-Greywolf watershed … the headwaters of our entire ecosystem.
If you see any white up there it’s the last remnants of last winter’s snowpack, feeding our River and the watershed as a whole until the rain bounty arrives and a new water year begins.
For the 2019 Water Year (started Oct. 1, 2018):
• Rain in Sequim through Sept. 15 at the Sequim 2E weather station (sea level): Total rainfall = 17.5 inches; Highest and lowest temps haven’t changed = 83 deg. F on Aug. 4 and 15 deg. F in October.
• River flow at the USGS gage on the Dungeness (Mile 11.2): Maximum and minimum flows haven’t changed = 1,870 cubic feet per second (cfs) on Nov. 27 and 77 cfs on Oct. 25. Currently = 183 cfs. Range for the past month = 94-300 cfs.
• Flow at Bell Creek entering Carrie Blake Park: none; Bell Creek at Washington Harbor = summer flow is 1-2 cfs.
Ann Soule is a hydrogeologist immersed in the Dungeness watershed since 1990, now Resource Manager for City of Sequim. The opinions expressed are those of the author and do not necessarily represent policies of her employer. Reach Ann at firstname.lastname@example.org or via her blog at watercolumnsite.wordpress.com.