No Water Left Behind
By Janelle Robbins, Waterkeeper Alliance Staff Scientist

In the early 1970s, faced with public outrage over the state of American waterways, Congress decided that a new federal law was needed to protect our nation’s waters. Many in industry agreed; federal standards would avoid different regulatory approaches in 50 different states and, some argue, allow a single point of influence for enforcement and implementation of the law.

Key to a federal approach was ensuring that the federal government had the authority to regulate waters that run through individual states. Large waterways are easy; protecting interstate commerce and the ‘navigability’ of waters has been a recognized function of the federal government since the 1899 federal Rivers and Harbors Act, or before. But in the case of small streams and wetlands, federal authority is derived through other legal mechanisms. The 1972 Clean Water Act includes protections for wetlands and small headwater streams.
In the 1990s developers, wanting to loosen protections, brought lawsuits that challenged federal authority to regulate wetlands and streams. Decisions by the Supreme Court in two of these cases have been used by states, developers and the Bush administration as an excuse to undermine federal authority and not protect small streams and wetlands.

The 2001 Solid Waste Agency of Northern Cooke County v. U.S. Army Corps of Engineers decision narrowly finds that one mechanism, use of a waterway by migratory birds, is not adequate for determining federal authority. In 2006 the Supreme Court issued a split decision in Rapanos v. U.S. — four versus four — with one decision in the middle. That middle decision, by Justice Anthony Kennedy, requires a test to establish a “significant nexus,” or a physical, biological or chemical connection between the wetland or stream in question and a waterway that is navigable.

The Bush administration seized on the rulings and stopped enforcement of the Clean Water Act. The Army Corps of Engineers, which oversees federal wetlands protection, and EPA issued directives to their field staff to immediately stop applying Clean Water Act protections unless they first receive permission from Army Corps headquarters in Washington. Anywhere from 20 million to 80 million acres of wetlands and countless other small waterways effectively lost federal protection. Around the country developers rushed to build on wetlands and small streams that for 30 years had federal protection.
Polluters and developers claimed victory with the SWANCC and Rapanos rulings, asserting that they have the right to fill, drain and otherwise destroy these small but extremely important waters. Around the nation, Waterkeepers are on the frontlines, fighting to maintain protections despite the federal government’s dereliction of duty.

Black Warrior Riverkeeper, Alabama
In 2005, a jury convicted McWane, Inc. and three of its employees on 20 counts including conspiracy to violate the Clean Water Act, defrauding the U.S. and violating their Clean Water Act permit for illegally discharging hydraulic oil, metals and trash to Avondale Creek. But after Rapanos, an appellate court struck down the convictions, saying that Avondale Creek lacked a “significant nexus” to the Black Warrior River. The court claims that the creek is not protected by the act, yet McWane possessed a Clean Water Act permit to discharge into it. The creek is physically connected to the Black Warrior via Village Creek and the Locust Fork, which is in fact navigable. If it were not, barges could not deliver coal to the Miller Steam Plant at their confluence. This sets a bad precedent for holding other industrial polluters accountable on Avondale Creek and throughout the state, putting much of Alabama’s natural resources at risk.

Shenandoah Riverkeeper, Virginia
A 1200-person campground and water park development has received a provisional permit to discharge at least 39,000 gallons of sewage per day to a nearby stream. Located on the edge of the George Washington National Forest, this stream is in a location known for sinkholes and caves, and is in an ecologically important headwaters region. Without Clean Water Act protection, this stream will literally run with sewage.

Kansas Riverkeeper, Kansas
In 2001 the State of Kansas passed their own Dirty Water Act, reclassifying roughly 40 percent of streams in the state and eliminating federal protections. Kansas Riverkeeper fought this ruthless bill, but lost to the powerful agricultural lobby, which represents the largest polluters in the state. So far the Kansas Department of Health and Environment has removed protections for 68 stream segments in the Kansas River watershed, putting the Kansas River in terrible peril.

Clean Water Restoration Act
This erosion of the reach of the Clean Water Act paves the way for development on top of streams and wetlands and the unfettered pollution of our waterways. The Clean Water Restoration Act is a bill being considered by Congress that clarifies the definition of ‘waters of the United States’ in the Clean Water Act:

… all waters subject to the ebb and flow of the tide, the territorial seas, and all interstate and intrastate waters and their tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments of the foregoing, to the fullest extent that these waters, or activities affecting these waters, are subject to the legislative power of Congress under the Constitution.

This law will once again place all our nation’s precious waterways back under federal protection, where they belong, once and for all.

More than Water in Peril
Wetlands provide essential flood management. Floods cause approximately $3 billion in property damage and the loss of 200 human lives annually in the U.S.

Wetlands protect us from pollution. Restoring just one percent of a watershed’s natural wetlands has the potential to provide a 50 percent reduction in nitrate and herbicide pollution from runoff.

Wetlands provide critical habitat. Forty-three percent of federally threatened and endangered species rely on wetlands for survival.
Small waterbodies afford us unspeakable natural beauty and valuable recreation. Every year, millions of Americans hunt, fish, canoe and watch wildlife. Recreational fishing in wetland-dependent coastal waters alone brings in $18 billion annually.

Boundaries
Water has no regard for political boundaries or human law. While a waterway may be geographically or politically isolated, no waters are hydrologically or ecologically isolated. Water moves underground and out of sight, forming complex physical, biological and chemical connections between waterbodies. The destruction or pollution of any part of the aquatic system creates a ripple effect, damaging the integrity of entire ecosystems.