Flowing water doesn't respect state boundaries. It will keep moving from puddle to ditch to creek to stream to river without the slightest concern for whether it's in the upper reaches of the Mississippi in Minnesota or far downstream in the Louisiana Delta. Pollution moves right along with it, so while states can exercise authority to regulate their own waters, the ultimate responsibility for protecting public health and clean water falls to the federal government.
Last week, President Barack Obama announced the new rules known as the "Waters of the United States" under which the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers will act to meet that very obligation under the 43-year-old Clean Water Act. The regulations seek to clarify legal uncertainties raised by two Supreme Court rulings over exactly how far upstream the federal government's reach could extend.
Farmers and business groups have been quick to criticize the regulations — and have done so vehemently since they were first proposed a year ago — on the grounds that they are a costly bureaucratic overreach. Their Republican allies in Congress have echoed that chorus, hoping to paint Mr. Obama once again as an autocrat seeking to overstep the Constitutional limits of his office by regulating what he could not possibly achieve through the legislative process.
None of those complaints is true (aside from the fact that a politically gridlocked Congress is unlikely to pass any environmental legislation of consequence, good or bad, in the foreseeable future). What is clear is that Americans who want clean water running through their taps aren't going to get it if major rivers are protected but the streams feeding into them are not.
Here in Maryland, we have seen this debate up close. The Chesapeake Bay Program has represented EPA's effort to bring a balanced, multi-state approach to protecting the bay and its tributaries. Maryland can't be certain of a clean Potomac River if West Virginia is not held accountable. Nor will the waters of the Susquehanna River be protected if portions of New York gave free rein to polluters. Without federal involvement, the chances of preserving and protecting the nation's largest estuary would seem remote at best.
Complicating all this is that pollution doesn't necessarily flow from the end of a sewer or industrial pipe. One of the challenges is to protect the nation's freshwater supply from what scientists call non-point sources of pollution — diffuse sources like runoff from farm fields after a heavy rain. Those waters may carry toxic pesticides or they may sweep away natural sediments and nutrients that will eventually over-saturate local waters, spur excess algae growth and upset the natural ecosystem, creating "dead zones" and killing marine life.
The growing threat of climate change has made protecting wetlands and streams more vital than ever. But special interest groups have proven themselves to be worthy opponents of clean water rules at both the federal and local levels. Farmers, in particular, have tried to make the case that a mere drainage ditch on their property couldn't possibly impact the health of a large river, ignoring the fact that it is those tiny raindrops falling on their land as well as the rest of the watershed, whether that property is held in private hands or not, that eventually coalesce downstream to form the mighty Mississippi.
Regulating such runoff isn't easy. Just ask Gov. Larry Hogan, who even while mocking the "rain tax" created to pay for remedies to stormwater runoff could not deny that the pollution that water carries represents a major threat to the Chesapeake Bay. And the EPA played a vital role in pushing for remedies. Had the agency not held Maryland's feet to the proverbial fire over stormwater runoff, Baltimore and the other worst-offending counties would probably never have been held accountable (at least not to the current degree) in the first place.
This won't be the final word on these protections. Lawsuits are inevitable, and at least two Supreme Court justices have already made it clear they believe federal authority over water ends when tributaries grow so shallow they are not longer "navigable." But it still seems likely the regulations will hold based on the language of those recent Supreme Court opinions. And that's good news for those who would like to preserve U.S. waters as places safe to swim, fish or drink, a goal that will require government action not only at the federal level but the state and local levels as well.