Most of the water that eventually drains into our nation’s largest rivers passes through a stream bed that is no longer protected by federal water pollution laws, a new study by University of Massachusetts Amherst and Yale University researchers found.
Before reaching a large river like the Merrimack, rainwater first flows through small stream beds, narrow channels, and grooves along the earth farther upstream. Through forests and down hills, rainwater flows along the long-established routes that water before it has carved, again and again.
Many of those paths and streambeds across the country, however, are no longer protected by federal water pollution laws after the Supreme Court last year significantly narrowed the definition of what is considered “waters of the U.S.” — and with it, the legal definition of a river and stream. On average, 55 percent of the water that flows out of the nation’s rivers each year comes from a basin that’s not regulated by the Environmental Protection Agency, the study published in the journal Science on Thursday found.
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“What this means is that there’s a potential pathway that nutrients or pollutants can get into a waterway,” that is supposed to be regulated, such as the Merrimack River, said Craig Brinkerhoff, a hydrologist who led the study while he was at the University of Massachusetts Amherst.
The amount of unregulated water that’s likely flowing into the larger river systems varies by the basin, researchers found. In the Merrimack River, for example, about 47 percent of the water annually likely comes from a now unregulated streambed. In the Connecticut coastal river system, it’s 54 percent, and in the Upper Hudson River, about 49 percent.
In Massachusetts however, state environmental laws covers almost all of these ephemeral streams, or streams that flow intermittently and only in response to rainwater, said John Beling, deputy commissioner for policy and planning at the Massachusetts Department of Environmental Protection.
Beling said there is a “very small universe” of seasonally-flowing streams in the Commonwealth that drain into isolated bogs that are no longer regulated, because Massachusetts had leaned on the Clean Water Act for those areas. He said those exceptions are few and far between, however, particularly compared to other areas of the country with weaker state environmental laws.
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“There will be large percentages of discharge [across the country] that will no longer be regulated,” he said, but here in Massachusetts, “we’re just lucky in this part of the country that we’ve been ahead of this for quite a long time, and we’ve been regulating it on our own.”
After the Sackett v. EPA case, the EPA no longer has jurisdiction over waterways that are not permanent, standing, or continuously flowing bodies of water. The court challenge came after the EPA under the Biden administration attempted to regulate wetlands as part of its Clean Water Act authority; in the case, the court clarified a long-uncertain definition of the waters that the EPA could regulate.
“There’s been long and tortured debates about what [waters of the US] actually means,” said Douglas Kysar, a law professor at Yale Law School and coauthor of the study. “It’s been very confusing for the regulators, confusing also for industry and developers.”
The court, in this case, “construed the definition of [waters of the US] in a pretty narrow way,” he said.
For decades after the New Deal, courts generally deferred to the expertise of federal agencies when questions of how to regulate a particular topic came up. The EPA, the court had then reasoned, has a staff of scientists, hydrologists, economists, and more to decide how best to regulate.
The Supreme Court in recent years, however, has turned on that reasoning and is instead curtailing executive agency powers.
“We’re now in a moment where the Supreme Court is kind of actively trying to chip away at the administrative state,” Kysar said.
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What that means for water regulation, he said, is that water quality will depend on state and local regulations. But Kysar doubts that will be an effective long-term solution because large water basins often cross state lines; upstream states have little incentive to regulate the water quality if it impacts a different downstream state.
On Thursday, the Supreme Court ruled against the EPA again, curtailing its powers to regulate ozone, an air pollutant, across state lines; on Friday, the court dramatically reduced powers of federal agencies by striking down the long-standing legal precedent to defer to agency expertise when creating regulations from broadly-worded laws passed by Congress. Instead, the Supreme Court’s opinion said in a 6-3 decision, the courts will decide.
Erin Douglas can be reached at [email protected]. Follow her @erinmdouglas23.