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Finally: Our Waters Could Be Given Their Clean Water Protections Back

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Clean water: The recent 65-mile closure of the Mississippi River due to an oil spill proves how economically important it is; the coal ash discharge this winter that poisoned North Carolina's Dan River shows how vulnerable it is; and the hundreds of West Virginians rushed to emergency rooms after drinking tap water tainted by a chemical spill shows how frightening it is when it's not available. Clean water should be a given in this great nation. Yet over the past decade, many of our waterways have been left defenseless and vulnerable to toxic pollution through a pattern of continuous weakening of the Clean Water Act.

While major watersheds are still protected by the Environmental Protection Agency's Clean Water Act, because of two confusing Supreme Court decisions and the destructive policies of the George W. Bush Administration, millions of acres of wetlands and thousands of miles of streams have been left completely unprotected, allowing industrial dischargers, developers, and others to pollute, fill, or destroy these waters.

The good news is that today the Environmental Protection Agency has announced plans to restore Clean Water Act protections for these vital waterways. The Agency has proposed a rule that reinstates safeguards for the streams and wetlands that serve as the source of drinking water for 117 million Americans.

These protections, which stood for decades since Congress passed the Clean Water Act in 1972, were dismantled after two bewildering Supreme Court decisions prompted the George W. Bush Administration to push through polluter-friendly policies. The result was 20 million acres of America's wetlands and 59 percent of the nation's streams have been left unguarded.

Now we face a continuing and growing crisis. Last year, the EPA released its latest scientific survey of water quality in the U.S. that demonstrated more than half of our streams and rivers are polluted and unfit for swimming, fishing, or drinking -- basic protections that the Clean Water Act was meant to guarantee. To understand how we have lost protections of our waters we need to take a closer look at the two court cases that got us into this mess.

Just over a decade ago, the Supreme Court heard the case Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers. A Chicago-area garbage agency sought to fill in ponds inhabited by migratory birds to build a landfill. The Army Corps, the federal agency that grants permits to dredge or fill waterways, denied the necessary Clean Water Act permits. The garbage agency sued, claiming that the ponds shouldn't be covered under the Clean Water Act and therefore permits weren't necessary. The case worked its way up to the Supreme Court, which ruled that neither the Corps nor the EPA could claim jurisdiction over "isolated waters."

The ruling led to tremendous ambiguity over what waters should be considered "isolated" and what waters qualify for protections under the Clean Water Act. Until this point, the Clean Water Act protected most waters in the U.S. without the artificial (in scientific terms) qualifier of "connected" versus "isolated." The decision, by some estimates, exposed up to 30 percent of America's wetlands to those who would destroy these important ecosystems and natural flood barriers to build strip malls and parking lots.

In 2006, the Supreme Court heard another case that further jeopardized America's waters. In the late 1980s, Michigander John Rapanos ignored the guidance of state employees and purposely destroyed 22 acres of wetlands to build a shopping mall without seeking a Clean Water Act permit. When the EPA sued, the developer argued that the wetland wasn't protected under the Clean Water Act because it was located 20 miles away from any "navigable waterway," a term that had been used to account for waters protected under the act and generally referred to as waters of the United States.

In Rapanos v. United States, Justice Kennedy's opinion defined "navigable waterway" as only major streams, oceans, rivers, and lakes, and any other waters with a "significant nexus" to those features, without defining significant nexus. This left the door wide open for polluting industries to claim the EPA has no jurisdiction over many streams or wetlands that provide drinking water and important wildlife values but that may not be connected to a major waterway year-round.

President Bush then used the two rulings to radically narrow interpretation of the Clean Water Act. The decisions and actions by President Bush led the EPA to simply drop enforcement of more than 300 Clean Water Act violations and reduce priority of enforcement for about 150 other cases. Without these protections, polluters have been given a free pass to destroy important wetlands with no fear of consequences. Between 2004 and 2009, an estimated 62,300 acres of wetlands were lost throughout United States. Further reducing their protection is inexcusable.

Today's long-overdue EPA rule finally clears up all the confusion left by these two court rulings, and it restores protections that were stripped away by the Bush policies. It is based on over 1,000 independent peer-reviewed scientific studies that show what is commonly known: Our waters are connected.

Polluters and their friends in Congress will cry that this amounts to government overreach -- that the EPA wants to regulate the puddles at the end of our driveways. But this isn't about puddles; it's about protecting the critical sources of our drinking water. It's about ensuring that our children can swim in our rivers and fish in our creeks. And it's about saving the wetlands that serve as a sponge, a pollutant filter, and natural flood protection for our communities downstream.

Earthjustice's Chris Espinosa wrote, "Poll after poll shows that Americans cherish their local waterways", and that they are concerned about pollution threatening these treasured places. We cannot back down on protecting the waters that eventually flow through our faucets. Our children, our health, and our very drinking water are at stake. We urge the Obama administration to resist the polluter lobbies and quickly move forward in protecting our waterways and our families.

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