In early June, the U.S. Environmental Protection Agency (EPA) proposed a new rule to strengthen protections for the nation’s streams, lakes, and wetlands from pollution and other harms. The proposal will restore the power of states and Tribal Nations to protect their waters under the Clean Water Act, which was gutted by the previous administration. The new rule updates the regulatory requirements for water quality certification under the CWA Section 401.
Clean water rule revised
The EPA announced in May 2021 that it would revise the 2020 CWA Section 401 Certification Rule issued by former President Trump. The Navigable Waters Protection Rule narrowed the definition of what constitutes Waters of the U.S. The rule opened up millions of the country’s waterways and wetlands to industrial pollution. The rule also eliminated the Obama administration’s 2015 case-specific rule. It defined waters of the U.S. as applying to only four categories:
- territorial seas and traditional navigable waters
- tributaries of such waters
- certain lakes, ponds, and impoundments of jurisdictional waters
- wetlands adjacent to other jurisdictional waters
“By proposing to undo the Trump administration’s illegal and reckless restrictions on states’ and Tribal Nations’ authority to prevent these harms, EPA is taking an important step for the health of the nation’s waters,” said Jon Devine, director of federal water policy for Natural Resources Defense Council (NRDC), in a statement.
“For 50 years, the Clean Water Act has protected water resources that are essential to thriving communities, vibrant ecosystems, and sustainable economic growth,” said EPA Administrator Michael S. Regan. “EPA’s proposed rule builds on this foundation by empowering states, territories, and Tribes to use Congressionally granted authority to protect precious water resources while supporting much-needed infrastructure projects that create jobs and bolster our economy.”
Pollution in U.S. waterways
Pollution is rampant in U.S. waterways. Fifty years ago the CWA became the law of the land, and nearly four decades have passed since the law’s deadline passed for all waters across the country to be “fishable and swimmable. A report by Environmental Integrity Project found that 50 percent of assessed rivers and streams are polluted enough to be classified as “impaired.”
The most recent surveys on national water quality by the EPA show that 46 percent of rivers and streams are in poor condition, with phosphorus and nitrogen being the most widespread pollutants. High levels of both pollutants are harmful to the ecosystem of a waterway. The surveys also found that 21 percent of lakes are hypereutrophic, meaning they have an excess of nutrients, with phosphorus and nitrogen being the two most common pollutants. Over a third (32 percent) of wetlands are in poor condition, with surface hardening and vegetation removal being the two most harmful problems.
Agriculture is the top polluter of U.S. rivers, streams, lakes, and groundwater. Every year, farms apply over 12 million tons of nitrogen fertilizer and eight million tons of phosphorus fertilizer to cropland and some of it ends up in water sources. In 2019, U.S. industries and businesses dumped 204 million pounds of chemicals into rivers and streams, and some of those waterways are drinking water sources, according to the EPA’s Toxics Release Inventory.