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Does the Clean Water Act Protect Wetlands?

This is a guest post by Fiona Ouma, a 2023 Duke Fellow at Dogwood Alliance.

What is the Clean Water Act?

The Clean Water Act (CWA) is a federal law in the United States. It plays a significant role in safeguarding the country’s wetlands.

Wetlands are an important part of our ecosystem. They’re often vulnerable to destruction due to development and urbanization.

The Clean Water Act enforces strict measures against wetland pollution. It’s the strongest pollution control program in the US. The act allows for the federal government to monitor and improve water quality.

How the Clean Water Act protects our rivers

The CWA says that activities on wetlands need approval from the US Army Corps of Engineers. This makes sure that things like building and dredging don’t damage fragile ecosystems. The CWA’s Section 404 Program gives funding to conservation projects. These projects improve water quality and environmental protection.

On May 25, 2023, the Supreme Court heard Sackett v. EPA (Environmental Protection Agency). The Supreme Court announced a ruling on the CWA. The Clean Water Act only applies to wetlands separate from navigable waters. The Supreme Court ruled in favor of the Sacketts and against the EPA. This ruling narrowed the scope of wetlands that fall under federal control. Now, there must be a continuous surface connection for wetlands to be protected. The Supreme Court has harmed the nation’s waters with this ruling.

Why wetlands are important and the threats they face

US wetlands are important for our environment. They have economic, community, and cultural significance. They provide homes to various species. They’re natural buffers against climate change. Wetlands hold cultural value for Indigenous communities. They support industries like fishing and tourism. Protecting wetlands is crucial for environmental, economic, and cultural reasons.

The destruction of wetlands in the US is the result of several things. Things like switching land for farming, housing, or industry. People have the wrong idea that marshes are wastelands. People then misuse and undervalue them. Wetlands are also polluted by factories, poor waste management, and global warming.

Rising temperatures and sea levels threaten native species. Wetlands act as natural water filters. Their absence can damage water quality and control. Wetlands provide natural flood protection. So when we lose wetlands, it’s harder to withstand storms and flooding.

Wetlands conservation: How do we restore US wetlands?

Protecting wetlands in the United States requires a strategic approach. It should have preventive and restorative efforts. Policy and laws can stop wetland destruction by limiting harmful practices. We need to establish water quality standards to protect our nation’s waters.

Active wetlands protection would introduce native species and natural water patterns. Things like building drainage ditches and removing invasive species. It can also mean planting native wetland vegetation.

Public awareness is important. We must increase people’s interest in protecting wetlands. Giving private landowners benefits to protect and repair wetlands is also important. These can protect wetlands for future generations.

Gaps in the Clean Water Act

The Clean Water Act has  gaps in its coverage. These limit its effectiveness. Some of the gaps include:

1. Limited Protection

The CWA doesn’t protect all bodies of water. There are streams, wetlands, and other waters vulnerable to pollution. Enforcement of the CWA is challenging due to funding. State-level regulation is also challenging. And so is tracking non-point source pollution. We need better legislation and protection of our wetlands.

2. Ambiguity in scope

The CWA has sparked legal disputes because it’s ambiguous. The term “Waters of the United States” (WOTUS) lacks a clear definition. It also open to poor interpretation. Some argue it covers all waters. That would include isolated wetlands and ephemeral streams. Others say it only applies to navigable waters and their tributaries. These conflicting views have caused high-profile court cases like Rapanos v. United States in 2006. And the Supreme Court failed to reach a consensus on WOTUS then. We need a precise definition of the Clean Water Act.

3. Lack of adequate knowledge, oversight, and regulation

The EPA identified gaps in scientific understanding, oversight, and regulation. Wetlands and water supplies are now at risk. These gaps allow pollutants to compromise water quality. They endanger aquatic life and human health. Lack of research on some pollutants makes it harder to regulate. Poor oversight leads to noncompliance and outdated legislation. All this means we’re failing to address modern industrial pollution.

4. Oil and gas extraction guidelines have loopholes

The CWA guidelines for oil and gas extraction have faced a lot of criticism. They’re allowing polluting discharges into US wetlands. The exemption of some waste extraction from these guidelines is a concern. Oil and gas contain harmful pollutants. When pollutants are poorly disposed of, they can contaminate wetland ecosystems. Current regulations don’t address all discharges from oil and gas facilities into wetlands.

5. Clean Water Act doesn’t regulate agricultural and stormwater runoff

The CWA doesn’t regulate agricultural and stormwater runoff. Originally, the Act tried to control direct “point source” discharges into wetlands. Agricultural and stormwater runoff are “nonpoint sources” of pollution. Nonpoint sources are a challenge when they flow into wetlands. Unlike industrial or sewage treatment plants with identifiable discharge points. Managing this runoff requires different strategies not included in the CWA.

6. Contaminants aren’t well regulated

Addressing emerging contaminants like PFAS, microplastics, and pharmaceuticals is a big challenge. The CWA isn’t currently regulating them. So they can stay in the environment and harm wildlife and human health. The toxicity of these contaminants makes this an urgent issue. Lack of scientific understanding of proper disposal and its effects hinders regulation.

7. Lack of funding to improve water quality standards and tribal community programs

Tribal communities face hardship in protecting water quality standards under the CWA. This is due to lack of funding and other resources. The government needs to allocate more funds to tribal communities for conservation.

8. The Clean Water Act doesn’t cover ditches and rills that erosion causes

The CWA doesn’t include guidelines on ditches, rills, and other similar features. But they guide water from farms and cities straight into waterways. So they’re bringing dirt and pollution into streams and forests.

Recommendations for addressing gaps in the Clean Water Act

1. Clarification/expansion of the powers of the Clean Water Act

Right now, many important wetlands are unprotected. The CWA needs to cover all wetlands with connections to downstream waters. Wetlands are important for the health of downstream waters. They filter pollutants, reduce flooding, and recharge groundwater. This benefits the entire ecosystem.

2. Encourage local governments to protect water quality through zoning

The government can build conservation zones to prevent risks to water quality. Land use laws can also ensure construction doesn’t harm water bodies. Building buffer zones can safeguard wetlands from pollutants.

3. Revise guidelines and increase monitoring of oil and gas wastewater discharges

There’s an urgent need to increase monitoring of oil and gas wastewater discharges. Current regulations have loopholes. These allow harmful contaminants to enter waterways. This threatens public health and water quality.

4. Strengthen the Clean Water Act by increasing water affordability

Here are a few recommendations to consider:

  • Invest in Water Infrastructure. Prioritize funding for infrastructure to reduce leaks and improve wastewater treatment.
  • Promote Water Recycling. Encourage water recycling technology in industries and homes. This can reduce the demand for fresh water. It can decrease wastewater discharge.
  • Increase Funding for Monitoring. We need more inspections and oversight for things like nonpoint source pollution.
  • Water Pricing Reform. Develop pricing levels that show the true fair cost of water. Reward conservation. Fund the fair pricing of water systems.
  • Increase Public Awareness and Education. Invest in programs that educate the public. Teach people about water conservation and pollution.

5. Increase data collection on water pollution reporting and compliance

Here are some strategies to consider:

  • Technological Tools. Use technology like IT and AI for monitoring, data gathering, and reports.
  • Capacity Building. Regularly train agencies on better data collection skills and compliance.
  • Public-Private Partnerships. Work with the industry for compliance. Maintain regular discussions.
  • Community Engagement. Run citizen science programs for data collection and monitoring.
  • Legislative Review. Update laws often to meet new challenges. Always consult the relevant stakeholders.

What you can do

Are you ready to take action? Tell your representatives to protect wetlands.

Fiona Ouma is a Master of International Development Policy Student at Duke University. She’s interested in Social Entrepreneurship, Climate Action, and Philanthropy. She advocates funding that advances environmental justice initiatives. In her free time she loves traveling, hiking, and making new recipes.

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