02
Aug
Research Shows Streams Transporting Pollutants No Longer Regulated by EPA after Supreme Court Decision
(Beyond Pesticides, August 2, 2024) In a recent study published in Science, a team from the University of Massachusetts and Yale University provides quantitative insight into the significant effects of a recent U.S. Supreme Court decision on the nation’s water quality. This research highlights the essential role of ephemeral streams—water sources that flow temporarily after rainfall—in transporting pollutants, including pesticides, sediments, and nutrients from land to larger water bodies.Â
This comprehensive study underscores the devastating risk to U.S. water quality, stemming from the May 2023 U.S. Supreme Court decision, Sackett v. Environmental Protection Agency (EPA), which dramatically limits the agency’s ability to protect ephemeral streams as well as critical wetland ecosystems under the Clean Water Act (CWA). As a May 2024 report by Clean Water for All Coalition notes, “The [Sackett] decision has endangered the drinking water sources of at least 117 million Americans by stripping protections from over half of the nation’s wetlands, as well as up to nearly 5 million miles of rain-dependent and seasonal streams that feed into rivers, lakes, and estuaries.â€
At a time when an immediate response to the climate crisis and chemical pollution is more urgent than ever, the U.S. Supreme Court’s judicial decisions are seen by environmentalists and public health advocates as undermining necessary actions for a sustainable future. The Sackett decision reverses 40 years of environmental protection and water quality improvement under CWA, leaving ephemeral streams and many wetlands at risk for widespread and unrestricted contamination.Â
Methodology and Results
Researchers compare long-term monthly water table depths with predicted bankfull depths across discrete water bodies, routing water through river systems using a published river-lake-reservoir routing framework to ensure that the newly mapped ephemeral channels were not immediately downstream of perennial rivers. The ephemeral stream map was validated using 7.207 in situ site assessments, and the model quantified the fraction of each river’s mean annual discharge—contributed by upstream ephemeral catchments—by tracking water as it moved downstream.
After modeling ephemeral stream contributions to the U.S. network—more than 20 million rivers, lakes, reservoirs, canals, and ditches—the results indicate “… that ephemeral streams are likely a substantial pathway through which pollution may influence downstream water quality, a finding that can inform evaluation of the consequences of limiting U.S. federal jurisdiction over ephemeral streams under the CWA.†The findings indicate that these ephemeral streams account for more than 50% of the water in major rivers like the Mississippi and Columbia, and over 90% in the Rio Grande.
Ephemeral streams, often overlooked waterways and drainage networks, account for 55% of the annual discharge from HUC4 (large river basins) drainage networks on average, with a higher influence in the western basins compared to the Eastern U.S. Ephemeral streams are particularly dominant in the desert and endorheic (completely isolated) basins of the Southwest and Great Basin, accounting for 59% of the total drainage network. Also, smaller streams have a higher percentage of ephemeral water, with first-order streams (smallest streams in a drainage network, also known as headwater streams or tributaries) averaging 79% from ephemeral sources. Overall, 68% of networks contain water that is at least 50% ephemeral.
Yale law professor Douglas Kysar, JD, coauthor of the Science piece, commented in a news article posted to the Yale School of the Environment website, saying, “When the Supreme Court narrowed the scope of the federal Clean Water Act, it did so by referring to abstract dictionary definitions rather than science. This research underscores the impact of that approach since, by our estimate, over half of annual discharge from U.S. drainage networks will no longer be protected by the Act.†The Yale article states, “By highlighting the importance of ephemeral stream flow to the downstream water quality, the results provide a basis for Congress to amend the CWA to expressly include ephemeral streams as an exercise of its power over interstate commerce.” Kysar said that the study findings also point to the need of enhanced regulation by state and local governments.
This is important because the adverse impacts on water quality will impact the waterways as a system. As coauthor Peter Raymond, PhD, Yale professor of biogeochemistry, notes, “The chemistry of water is dependent on how you manage the entire watershed, not just pieces of it. These streams are a critical source of water and pollutants and have to be regulated.â€
“A State-by-State Fight†Responses Since Sackett Decision
Since the Supreme Court’s Sackett decision, nine states have proposed or adopted new or stronger protective measures for wetlands and ephemeral waters to fill the federal regulatory void, while seven states have attempted or passed rollbacks of wetland and water protections.
Colorado adopted HB24-1379, restoring previous federal protections through a new state permitting program. Illinois proposed but failed to pass legislation to establish a wetlands permitting program. Enhanced protections or programs have been established by:
- New Mexico: $7.6 million allocated for water quality.
- Washington: Expanded permitting with additional resources.
- California: Legislation aimed at no net loss of wetlands.
- Maryland: New rights for residents to sue over water pollution.
- Delaware: Developing new freshwater wetlands regulations.
- Wisconsin: Funding for local wetland conservation efforts.
- North Carolina: Implemented a policy for increased wetland conservation through the Governor’s executive order, despite legislative challenges seeking to rollback protections.
Seven states introduced rolled back protections. Indiana alone passed significant reductions in wetland protections. Rollback efforts were introduced but stalled in Missouri, Tennessee, Florida, North Carolina, South Carolina, and Louisiana.
The Clean Water for All Coalition report details state regulatory actions and notes that protecting water quality cannot effectively be accomplished with a patchwork of state laws, since water and pollutants flow across jurisdictions. Importantly, the report calls out the disproportionate impact of the Sackett decision, putting “our public health, local ecosystems, and communities at risk—especially in places like environmental justice communities that are already vulnerable to pollution and intensifying climate disasters.â€
At best, state-by-state regulation poses both financial and capacity challenges for individual states, creating opportunities for polluting companies to exploit the weakened regulatory landscape. At worst, as Louisiana’s anti-clean water legislation shows, this weakened federal regulatory landscape risks drinking water supplies, environmental devastation, flooding, and disproportionately impacts vulnerable, environmental justice communities.
Ubiquitous pesticide use is evident in the widespread presence of pesticides in U.S. rivers and streams, with almost 90% percent of water samples containing at least five or more different pesticides—as Beyond Pesticides noted when reporting on a 2020 report by USGS, National Water-Quality Assessment (NAWQA) Project. Many of these pesticides are also linked to a range of human and environmental health effects, including cancer, birth defects, and neurological and reproductive health impacts (see Beyond Pesticides database here of Pesticide-Induced Diseases, with searchable access to studies that link public health effects to pesticides). The sheer number of different chemicals in the nation’s waterways and thus potential for toxic mixtures presents significant risks to health and the environment directly and from mixtures of contaminates. The data on water contamination has become one of the compelling reasons, according to health and environmental advocates, to abandon reliance on toxic chemicals in favor of organic land management.
Organic Agriculture and Land Care Reduces Water Contamination and Pollution
The research published inScience demonstrates the critical role of ephemeral streams, which consist of at least half of the water in the nation’s waterways. Without the authority provided by CWA to safeguard the quality of these waters, there remains a major threat to water quality. Advocates note that without federal regulation, steps must be taken immediately to curtail synthetic, petrochemical pesticide and fertilizer use and adopt organic practices and products to protect the nation’s waterways.
The focus on a holistic system of land management, as espoused by organic regenerative agriculture, demonstrates that relying on toxic chemical inputs for crop yields is unnecessary. Creating healthy soils, which is the foundation of organic systems, conserves water, nurtures fertility, reduces surface runoff and erosion, and decreases the need for nutrient input, and critically, eliminates the toxic chemicals that threaten so many aspects of human and ecosystem life, including water resources.
Solutions
With a focus on eliminating the very pesticides and synthetic fertilizers that are contaminating surface and ground water, certified organic agriculture is the only food production system that defines acceptable practices and allowed substances under rules adopted by the U.S. Department of Agriculture. Beyond Pesticides publishes the Daily News and conducts weekly actions that focus on a range of issues critical to health and the environment, from protection and integrity of organic standards to the underlying science that defines the threat of pesticides. Consider subscribing to the Action of the Week to engage in advocacy and receive a recap of the week’s top reports and developments.
Learn more about how Beyond Pesticides’ Parks for a Sustainable Future program works with universities, school districts, parks departments and on town, city, and county lands throughout the U.S. to support the transition to organic land management. This two-year program supports community land managers with in-depth training to transition two public green spaces to organic landscape management, providing the knowledge and skills necessary to be able to transition all public areas in a locality to these safer practices. To encourage your community to transition to organic land management, sign up to be a Parks Advocate today. For more information that informs the threats and support health and environmental advocacy, see the most recent issue of Pesticides and You.
All unattributed positions and opinions in this piece are those of Beyond Pesticides.
Sources:Â
Ephemeral stream water contributions to United States drainage networks, Science, June 2024
Wetlands and Streams Most in Danger After the U.S. Supreme Court’s Sackett v. EPA Ruling – Earthjustice, Earthjustice press release, May 14, 2024
Study Finds Small Streams, Recently Stripped of Protections, Are a Big Deal, New York Times, June 27, 2024Â
Ephemeral Streams Likely to Have Significant Effect on U.S. Water Quality, Yale School of the Environment press release, June 27, 2024Â
UMass study finds most water draining into US rivers isn’t protected by federal pollution laws, Mass state law goes farther, Boston Globe, 2024
Sackett v. EPA: The State of Our Waters One Year Later, report by Clean Water for All and Protect Our Waters, May 2024
This Independence Day, Protect Democracy, Beyond Pesticides Daily News Blog, July 4, 2024
Recent Supreme Court Ruling on Clean Water Act “will take our country backwards,â€Beyond Pesticides Daily News Blog, June 15, 2023
Organic Land Management and the Protection of Water Quality, Pesticides and You, Beyond Pesticides, Winter 2013-2014
Organic Systems: The Path Forward, Pesticides and You, Beyond Pesticides, Spring 2019
Threatened Waters: Turning the Tide on Pesticide Contamination, Beyond Pesticides website
