February 17, 2020

Restore the Clean Water Act

High discharges of phosphorus from a Millinocket mill this August caused a massive algae bloom that threatened aquatic life and drove swimmers, including me, from our favorite swimming holes along the Penobscot River watershed as far as 75 miles downstream in Hampden – a reminder of how fragile, and connected, our Maine waters are.

Water flows downhill. From that basic law of physics, it follows that anything dumped into a water source – including pollutants – will eventually wend its way downstream through the interconnectedness of wetlands, tributaries, streams, rivers, ponds and lakes.

For this reason, Congress, led by then-Sen. Edmund S. Muskie of Maine, passed the 1972 Clean Water Act to set a national standard protecting all the nation’s waters. For more than three decades, the agencies charged with enforcing those safeguards have viewed the aquatic system as a whole, realizing that the capillaries connect to the bloodstream.

Last year, the Supreme Court threw it all into confusion.

In a contentious 4-1-4 split decision (Rapanos v. U.S.), the court mandated that questions of Clean Water Act jurisdiction over many wetlands will likely have to be thrashed out on a case-by-case basis in the lower courts. The decision also placed federal protection of important headwater streams in doubt. A 2001 decision further muddied the waters over Clean Water Act protection for isolated wetlands and streams.

In an editorial last year (“Weak Water Test,” June 19, 2006), the BDN concluded that the Rapanos decision created a test that is “vague and creat[es] more work and uncertainty for developers and regulators,” and argued that to “avoid this unacceptable situation, the Army Corps of Engineers should clarify when a wetland is connected to a navigable waterway, triggering federal review.” The Army Corps (along with the Environmental Protection Agency) has now spoken, and it’s neither clarifying nor reassuring. The agencies’ June 2007 guidance, issued after a year of apparent infighting in the Bush administration, only bolsters the juggernaut citizens and regional officials will face when wetlands permitting arises. It requires a case-by-case scientific assessment in many cases before the first base determination of jurisdiction is made, significantly increasing the work and cost of permitting. With all the other demands on our federal budget, it’s hard to imagine any of this business of wetlands permitting being done without the easier, categorical rules that were in place before this Supreme Court decision.

The threat to Maine is alarming.

Every major river and coastal water in Maine depends on “non-navigable” streams, brooks, creeks and small rivers, along with their neighboring wetlands, that could lose all federal Clean Water Act protections in the aftermath of these events. According to EPA, more than 389,000 people in Maine receive some of their drinking water from areas containing these smaller streams. These small streams are also crucial to restoring our Atlantic salmon runs because of the sensitivity of these fish to changes in water quality and quantity. In addition, Maine has almost 298,000 acres of so-called “isolated” waters – water bodies that are particularly vulnerable to losing Clean Water Act safeguards. The Maine Department of Environmental Protection has stated that “much of the progress we have made through water quality protection efforts [under the Clean Water Act] could be put at risk should federal protection of these resources be reduced.”

The risk is severe. The solution is obvious.

Many of Congress’ staunchest defenders of the Clean Water Act, including Reps. James Oberstar of Minnesota, John Dingell of Michigan and Vernon Ehlers of Michigan, along with Rep. Tom Allen of Maine, have introduced legislation that would confirm that Congress meant what it said in 1972: The Clean Water Act applies to all the nation’s waters and not just some. The protections are a national standard, not a patchwork. Sen. Russ Feingold of Wisconsin has recently introduced a companion bill in the Senate.

Passage of this legislation to end the confusion caused by the Supreme Court is the most decisive tool available. There is no good reason why this cannot be done before this Congress adjourns.

The proposed Clean Water Restoration Act of 2007 reaffirms the traditional scope and clear purpose of Sen. Muskie’s Clean Water Act. Unless the legislation becomes law, 20 million acres of the nation’s wetlands are at risk of losing Clean Water Act protections. Additionally, some 60 percent of stream-miles in the United States which do not flow year-round, including many headwater streams in Maine, could also lose federal protection. Even where state agencies such as DEP in Maine are committed to protecting these waters through state administration, without a federal standard, we are powerless to protect watersheds (like the Androscoggin) that extend across state boundaries.

The matter is vital. The confusion should be set aside. Congress should act to clearly restate the principle that the Clean Water Act applies to all the nation’s waters – those great and those small – all of them together being the foundation of life for us all.

Sharon S. Tisher, J.D., teaches environmental law at the University of Maine.

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