The Science Advisory Board of the Environmental Protection Agency recently issued stiff and warranted criticism of the agency for ignoring the science affecting some of its more controversial rulings. It is reassuring that the scientific viewpoint so necessary to sound environmental policy remains rightly vigorous in this instance.
Of particular significance to South Carolina, the SAB criticized the EPA for ignoring the science of watershed connectivity in proposing a new Clean Water Rule that now faces legal challenge.
The Trump administration EPA and the Army Corps of Engineers have proposed a new legal definition of the waters of the United States that fall under federal jurisdiction. It excludes temporary streams and so-called isolated wetlands, which would be a mistake. These features had been included in a rule proposed by the Obama administration in 2015.
The new rule would return to an earlier definition, which considered the regulation of such waters a state responsibility. A federal estimate published by E&E News suggests that 18% of streams and 51% of wetlands, including features like this state’s Carolina Bays, would be exempt from federal regulation if the rule takes effect.
The SAB rightly pointed to the science showing that even these isolated and rare water features connect in some way to and affect the cleanliness of regulated “navigable” waters under the Clean Water Act.
The connectivity of watersheds is a well established scientific fact, exhaustively laid out in a 2015 EPA study that was the basis for the Obama rule. Isolated wetlands such as Carolina Bays filter pollution and support plants and animals, including some rare species. They also help protect against flooding.
Ideally, under a shared federal-state responsibility for clean water, the states would adopt rules for regulating polluting activities not covered by federal jurisdiction. Many have not. The Isolated Wetlands and Carolina Bays Task Force formed by the South Carolina Legislature in 2012 recommended against regulation in its final report, preferring an approach using voluntary conservation easements to preserve these features.
Also ideally, Congress would clear up the ambiguity in the Clean Waters Act about the extent of federal jurisdiction.
In the absence of state or congressional action, the definition of waters under federal jurisdiction has fallen to the courts, which have given divided opinions. The new Trump rule is also headed to the courts. Eventually, the Supreme Court will have to step in again, the sooner the better to clarify the extent of federal regulation. Whatever it rules, as far as clean water is concerned, there is no escaping the science of watershed connectivity.