The interconnection of the natural word has long been part of human wisdom. “All the rivers run into the sea,” Ecclesiastes notes, even if they are streams that do not flow all year. As long as water flows downhill, pollution in one place can be carried to another.
The U.S. Environmental Protection Agency has long sought to recognize this reality. But Supreme Court rulings have confused the understanding of which waterways are subject to EPA rules. The agency recently issued a proposal that would clarify that intermittent streams near bigger ones will be covered.
Although the 1972 Clean Water Act gives the EPA power to regulate pollution in “navigable waters,” Congress has defined these broadly as “the waters of the United States, including the territorial seas.” In 1985, the Supreme Court held that a wetland next to a body of navigable water was subject to EPA rules.
But in 2006, Justice Antonin Scalia declared that the EPA’s power did not extend to saturated fields miles from a bigger body of water. Out of the confusion of this case and an earlier one comes the proposal of the new clarifying rule.
The proposal would protect the most seasonal and rain-dependent streams, along with wetlands near rivers and streams. Other types of waters that may have more uncertain connections to downstream water will be evaluated case by case. In sum, thousands of miles of headwaters, streams, and wetlands will return to EPA oversight.
The EPA says it has worked with stakeholders who have sought clarity, but the rule is opposed by more than a dozen Republican senators, led by Pat Toomey of Pennsylvania, with the support of some farmers. Senator Toomey calls the proposal a “terrifying power grab,” saying the “new position seems to be that a puddle from your garden hose will ultimately end up in a navigable waterway.”
That is over-the-top rhetoric. With science on its side, the EPA isn’t interested in regulating puddles or ditches. It does not seek to shield any new waters that are not historically covered under the Clean Water Act. The agency just wants to protect the environment, which benefits Americans hugely.
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