The Fundamental Flaw with the Dirty Water Rule

Chris Tavenor, General Counsel, May 16, 2019

When developing sound environmental policy, a factual, scientific basis creates laws that protect our health and our air, water, and land. Unfortunately, the US EPA has chosen to ignore science in favor of polluters.

Last month, the OEC submitted comments to the US EPA on its proposed Dirty Water Rule. While the commenting period has ended, we cannot forget this rule may still go into effect later this year. It could doom many of Ohio’s waterways, leaving precious streams and wetlands unprotected from the Clean Water Act.

The Dirty Water Rule fundamentally misinterprets the Clean Water Act, attempting to read into it a legal distinction that ignores the context of the Act. Specifically, the EPA tries to apply a purely legalistic definition based on what waters should be under control of the states, and what waters should be under the control of the federal government. The agency argues this fits within the federalist spirit of the Clean Water Act, and that science isn’t needed to distinguish what waters the Act should protect.

In doing so, they exclude 51 percent of the remaining wetlands and 18 percent of streams across the nation from protection under federal law. Ohio is already second in the nation for wetland loss. This means we could experience even more flooding and pollution in our source drinking water.

Yet the Clean Water Act was founded with the purpose of using science and technology to develop sustainable solutions to water pollution across the country. Ignoring what science says about the relationship between streams and wetlands will doom these water bodies because states will have no obligation to protect them from polluters. But more importantly, by ignoring necessary protections for these waters, the EPA also dooms our major rivers.

Streams and wetlands, even those distant from a larger water body (like the Ohio River or Lake Erie) provide important ecological functions. A distant wetland might slow down erosion, or a stream might reduce phosphorus and nitrogen pollution that causes toxic algae. Without federal protections, industries can potentially eliminate these wetlands and streams entirely by building a mall or mining coal.

We must continue to encourage our elected representatives to oppose the Dirty Water Rule and call on the US EPA to reject it. Contact your congressional representative today and urge them to support sound science instead of fictional legal distinctions designed to support polluting industries.

The Dirty Water Rule is fundamentally flawed; we cannot let it pass.