Opinion: Science, Not Politics Should Guide Federal Clean Water Act Clarification

By Bernard W. Sweeney, Ph.D., Director, Stroud Water Research Center

Fresh water is our most precious natural resource, as essential to life as the air we breathe. Fortunately, most of us in the United States don’t have to give it much thought. But news of several water emergencies this year should shake us out of complacency.

On August 2, nearly a half-million people in Toledo, Ohio woke up to learn their tap water was contaminated with microcystin, a neurotoxin produced by a massive bloom of the algae Cyanobacteria, in Lake Erie. It’s thought that nutrient overload, from farm runoff and sewage treatment effluent, contributed to the algae bloom.

In January, the drinking water for more than 300,000 West Virginians was poisoned when a Freedom Industries storage tank leaked, spewing 7,500 gallons of 4-methylcyclohexane into the Elk River, just upstream from a water treatment plant.

On February 2, an estimated 140,000 tons of toxic waste polluted the Dan River when a stormwater pipe burst beneath a coal ash impoundment at Duke Energy’s retired Dan River Power Station near Eden, North Carolina.

This year, more than half of California is suffering through a record-breaking drought. Soon, Californians may be forced to get over the yuck factor in “toilet to tap” technology and drink recycled waste water.

Why has this not evoked greater public concern about the vulnerability of our freshwater resources? Why hasn’t this sparked a national outcry, urging the U.S. Environmental Protection Agency to enforce the Clean Water Act more rigorously?

Why has the public not demanded that the federal agency be given the necessary authority to enforce appropriate safeguards, so that our freshwater resources will not be subject to the vagaries of state and local authorities, or to the whims of private landowners?

Instead, the EPA is being barraged by an army of opponents. Developers, property rights groups, the American Farm Bureau, the fertilizer industry and a number of politicians are attacking its proposed clarification — not an expansion—of which “waters of the United States” are covered by the Clean Water Act.

The need for clarification arose from two Supreme Court cases, in 2001 and in 2006. The clarification would enable the EPA to better protect our wetlands, small streams and other important watershed features without being dragged into court every time someone wanted to avoid compliance by exploiting an ambiguity.

But this July, the House Transportation and Infrastructure Committee passed two bills which could limit the EPA’s authority. One of the bills would give states more authority over water pollution permits, while the other would block the agency’s ability to redefine which waters fall under its jurisdiction.

These bills follow measures passed by the House Appropriations Subcommittee for Interior, Environment and Related Agencies on July 9, which would significantly cut EPA funding and remove the agency's authority to implement the proposed “Waters of the U.S.” rule.

Opponents are using inflammatory language like “overreach,” and “land grab.” Some are even telling farmers that the EPA would be regulating puddles, farm ponds and upland ditches that don’t flow into a stream--none of which is true.

Their arguments seem to ignore that the EPA’s proposed clarification is informed by decades of scientific research about freshwater ecosystems, such as the work our scientists have been doing since 1967.

The River Continuum Concept, published in 1980 by a team of scientists led by Stroud Water Research Center, is a foundational concept in freshwater ecology. It states that a river system represents a physical, chemical, and biological continuum from the smallest headwater streams to the main stem river at its confluence with the estuary.

Subsequent research around the world has not only supported this concept but demonstrated that, in fact, small headwater streams are the most critical and most vulnerable parts of a river.

Our scientists were part of the scientific advisory panel that helped the EPA's Office of Research and Development conduct a comprehensive review of more than 1,000 peer-reviewed publications in the scientific literature.

This report (U.S. Environmental Protection Agency, Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence, Washington, DC: U.S. Environmental Protection Agency, 2013) concludes:

“The scientific literature clearly demonstrates that streams, regardless of their size or how frequently they flow, strongly influence how downstream waters function. Streams supply most of the water in rivers, transport sediment and organic matter, provide habitat for many species, and take up or change nutrients that could otherwise impair downstream waters.”

Moreover, more than 85 percent of the nation's stream miles are small enough to jump across and many—if not most—of these flow through private property.

So, while opponents may object to the EPA having jurisdiction over streams on private land, landowners should not have the right to pollute streams running through their property as they please.

I’d like to point out that many farmers are responsible land stewards who want to do the right thing. Such landowners are currently working with the Stroud Center’s Watershed Restoration Team, as well as other conservation groups, to reduce barnyard runoff, exclude livestock from streams and plant streamside forest buffers.

An important part of our watershed team’s effort is to help these landowners obtain state and federal grant money to offset the costs of these voluntary improvements. Such incentive programs should be continued and expanded so that implementing best management practices will not cause farmers to suffer a financial loss.

The science tells us that watersheds with protected wetlands, streamside forest buffers and other best management practices can support both humans and wildlife in a sustainable way. They trap and store sediments; filter out contaminants; reduce the frequency and severity of flooding by slowing the release of stormwater; mitigate thermal pollution caused by deforestation, industrial inputs and water diversions; and replenish underground aquifers.

For decades, science has demonstrated the necessity of a holistic approach to understanding, protecting and restoring freshwater ecosystems. This requires a nationwide effort. Water, like air, transcends state, legislative and private property boundaries. Whatever happens upstream affects us all.

What we need is the intestinal fortitude to enforce the legislation currently available to us, restore aspects that have been lost and resist diluting what remains.

The alarm has sounded. We hit the snooze button at our peril. If you care about having clean, safe fresh water, contact your U.S. congressman and tell him or her to support the EPA’s waters of the United States clarification. The proposed rule is open for public comment until Oct. 20, 2014.

Bernard Sweeney, Ph.D., is director and president of Stroud Water Research Center, a nonprofit organization, based in Avondale, Pennsylvania, focused on freshwater research, environmental public education and watershed restoration.

Note: DEP Secretary Chris Abruzzo told DEP’s Citizens Advisory Council in May the proposed change in the federal rule would not have an impact on Pennsylvania because the state’s water quality programs already exceed minimum federal requirements.

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