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Column: Using common sense to protect water quality (w/video)

 
When the Cuyahoga River caught fire in Cleveland in 1969, it was the impetus for the U.S. Clean Water Act.
When the Cuyahoga River caught fire in Cleveland in 1969, it was the impetus for the U.S. Clean Water Act.
Published March 28, 2015

For many decades during the middle 20th century, virtually all state governments told their congressional delegations to let them, rather than the federal government, manage water quality within their borders.

Yet when Ohio's filthy Cuyahoga River caught fire in 1969, it symbolized how little states were doing to protect the nation's waters. Congress finally challenged states' rights advocates and powerful economic interests by passing the Clean Water Act in 1972, with the goal of making all of our country's waterways "fishable and swimmable."

The Clean Water Act is supposed to clean and maintain our nation's "navigable waters," which Congress defined as "water of the United States" — although Congress left to federal agencies the task of defining "waters of the United States." Congress understood that all water is connected, that the hydrological cycle moves water endlessly through the atmosphere, across the surface and below ground.

Moreover, if the nation's rivers are its circulatory system, wetlands serve as its kidneys, cleansing water before it reaches rivers. Accordingly, Congress designed the Clean Water Act to require businesses, sewage treatment plants, developers and larger landowners to obtain a permit before engaging in activity that reduces the quality of water we all depend on.

The Clean Water Act has improved many of our nation's most polluted waters, but problems remain. According to the Florida Department of Environmental Protection's 2014 assessment, thousands of miles of Florida rivers and streams suffer from excess nutrient and fecal pollution, and many fish exhibit elevated levels of mercury. Clearly there is more work to be done to protect Florida's waters.

Unfortunately, 40 years after passage of the Clean Water Act, two polluter-friendly Supreme Court decisions have left many of our waters unprotected. Perhaps the most significant occurred in 2006, after Michigan developer John Rapanos bulldozed wetlands without a permit to build a strip mall. Federal officials used the Clean Water Act to stop him but Rapanos filed suit and his case eventually reached the U.S. Supreme Court.

Deeply divided judges wrestled with the limits of federal government power to regulate land and wetland use intended to protect our water resources. Justice Anthony Kennedy broke the tie, contending that federal agencies may regulate wetlands and small streams only if a "significant nexus" could be found connecting them to navigable waterways.

As a result, during the past decade, the U.S. Army Corps of Engineers has issued hundreds more permits to fill wetlands and build near small streams than it should have because the definition of "waters of the United States" is not as clear as it should be. It also means that landowners frequently don't know if their property is subject to Clean Water Act jurisdiction or not; and they often spend much time and money asking environmental consultants to determine what the feds are likely to regulate and what they are not.

In recent years, the U.S. Environmental Protection Agency has worked to clarify the definition of "waters of the United States." After a review of more than 1,200 scientific papers, they concluded what most third-graders already know: Virtually all waters are ultimately connected to navigable waters. Next, the EPA worked with a range of stakeholders, including many property owners, to see how they might clarify the definition of "waters of the United States" for regulatory purposes.

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In early 2014, the nation's leading environmental agency proposed modest changes to the rules defining "waters of the United States" to include non-navigable tributaries and wetlands that are ultimately connected to navigable waters. They invited the public to weigh in and promptly received more than 800,000 comments, mostly supporting the proposed rule changes.

After modifying the proposed rule in light of all the public comments, the EPA was originally planning to implement the new rule next month.

Despite the benefits, many developers and other businesses with a vested interest in keeping streams and wetlands exempt from Clean Water Act protection are lobbying furiously to have Congress stop the proposed rule. Their campaign of misinformation suggests that the EPA is trying to grab our land by regulating waters that it did not regulate in the past. Not true. The proposed rule merely clarifies what the federal government will now uniformly protect rather than keep landowners guessing if federal authorities will exercise jurisdiction or not.

Commonsense rule changes to protect water quality are infinitely more valuable in the long run than waging ideological and self-destructive warfare.

Christopher F. Meindl is the Frank E. Duckwall Professor of Florida Studies at the University of South Florida St. Petersburg. He wrote this exclusively for the Tampa Bay Times.