Editorial on the New US Water Rule

New U.S. Water Rule is Crucial for Clean Drinking Water and Resilience to Droughts and Floods

It took nearly a decade, but finally the waters left terribly muddied by two U.S. Supreme Court cases have gotten a good bit clearer.

This week, the Environmental Protection Agency and the Army Corps of Engineersissueda new rule clarifying which of the nation's streams and wetlands come under the protections of the federal Clean Water Act.

Without this rule, some 117 million people - about one in three Americans - would continue to get drinking water from streams that lacked clear protection from pollution and degradation. And large populations of fish and wildlife would remain at risk of losing critical habitat.

The need for this clarification arose in large part from the U.S. Supreme Court's 2006 decision in the Rapanos-Carabell case, named for the two petitioners who each had sought to develop wetland areas on their Michigan properties - one for a shopping center in Midland, the other for condominiums north of Detroit.

In a mixed ruling, the four conservative justices ruled that the Clean Water Act applies only to "permanent, standing or continuously flowing" bodies of water, casting aside the protection of ecologically crucial seasonal and ephemeral wetlands and streams that are often hydrologically connected to flowing waters downstream.

Four other justices disagreed with this hydro-illogical interpretation and sided with sound science and the overall intent of the Clean Water Act to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters."

It was Justice Anthony Kennedy, however, who, in a separate opinion, introduced the confusing requirement that only streams and wetlands for which a "significant nexus" with navigable waters can be shown to exist should be subject to the law's protections.

Justice Kennedy's opinion set up a case-by-case approach that quickly became a regulatory nightmare and left in limbo the status of vast areas of small streams and wetlands.

Back in 2005, I joined nine other scientists, including the esteemed Harvard biologist E.O. Wilson, in writing and submitting an amicus curiae ("friend of the court") brief to inform the justices about the relevant science in this case.

Besides underscoring the various pathways by which tributaries, wetlands, aquifers and rivers are connected, we pointed out that besides supplying water and fish, aquatic ecosystems provide valuable economic services. They recharge groundwater, filter pollutants, mitigate floods and droughts, purify drinking water, and sustain a diversity of habitats.

We noted that the loss of water-cleansing wetlands in the Mississippi watershed far upstream from the Gulf of Mexico can contribute to the formation of the low-oxygen "dead zones" that threaten the Gulf 's fisheries and food webs each year.

Source: National Geographic

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Taxonomy

• Drought
• Flood Management
• Drinking Water