The strip is seen from the Las Vegas Wash at the Clark County Wetlands Park, Wednesday, Feb. 5, 2020.
Sunday, Jan. 26, 2020 | 2 a.m.
The Clean Water Rule technically never went into effect in Nevada, but that doesn’t mean its repeal and replacement won’t affect the state’s water resources, environmental advocates say.
Implemented in 2015 by the Environmental Protection Agency under then-President Barack Obama, the Clean Water Rule clarified the circumstances under which tributaries and other small bodies of water were subject to the Clean Water Act, the definitive federal law on water pollution. Whereas wetlands and small waterways that connect to larger bodies of water—even if only during heavy rainstorms or certain times of year—weren’t always bound by the Clean Water Act, the Clean Water Rule defined these bodies as “waters of the United States,” subject to federal protections.
The Trump administration repealed the rule in September and issued a replacement Thursday, which excludes from federal protections against pollution any tributaries, streams and wetlands that do not connect to larger bodies of water "in a typical year." Although environmental groups have already raised alarm about the replacement rule, state leaders appeared unconcerned when the administration announced its intent to repeal and replace the Clean Water Rule last year.
Both the Nevada Attorney General’s Office and the Nevada Division of Environmental Protection support and abide by pre-2015 Clean Water Act regulations, according to spokespeople for the offices. NDEP maintains that additional rules beyond the existing Clean Water Act would not further protect water quality, said the division’s deputy administrator Jennifer Carr.
“If the 2015 U.S. EPA rule were in effect in Nevada, the rule would require additional federal review, approvals and jurisdictional determinations for water pollution permits that, in most cases, would be duplicative of the state’s current regulatory process,” Carr explained.
Nevada’s Water Pollution Control Law already protects surface water, such as wetlands, streams, ponds and tributaries, along with groundwater, Carr said. Under the state law, industries, farmers and others are forbidden from discharging pollutants into any body of water without a permit.
“Pretty much any water in the state of Nevada is regulated by our pollution control law,” Carr said.
The presence of similar state protections, concerns about federal regulatory overreach and qualms about the Clean Water Rule’s regulation of groundwater led Nevada to challenge the rule in 2015 under former Gov. Brian Sandoval, Carr said. Nevada was technically never subject to the Clean Water Rule because it signed on to a successful 13-state lawsuit contesting it, Moazez said. Although the gubernatorial administration has changed, the state is still a party in that suit, she said.
Nonetheless, environmental groups say strong federal oversight of bodies of water is needed even if Nevada's state laws adequately protect its own water. That's because many Nevadans get their drinking water from interstate waterways, such as the Colorado River or Truckee River, said Nevada Conservation League Executive Director Andy Maggi.
The Clean Water Rule established uniformly strong protections for such waterways, thereby ensuring contaminants wouldn’t enter Nevada from neighboring states with potentially weaker water pollution laws, Maggi explained.
“Ninety percent of Nevadans’ drinking water comes from a river that flows through another state,” Maggi said. “Therefore, all of the tributaries in those other states and all of the streams ... can impact our drinking water.”
Carr countered that the pre-2015 definition of waters of the United States already accounted for interstate waters to ensure that pollution did not flow between states.
“The definition that’s been in place for decades pre-2015 included all interstate waters as being federally jurisdictional, so if a water crosses state lines, it’s already included in EPA jurisdiction,” she said.
Levi Kamolnick, director of Environment Nevada, acknowledged that the Clean Water Rule might have duplicated some efforts already undertaken by the state, but he questioned why officials would oppose the rule since it could have saved them from the regulatory burden. He also argued that the rule would have provided additional assurance for rural parts of the state with fewer resources for safeguarding water.
“I think if you live in Clark County or Washoe County, you probably don’t have too much to worry about with water contamination, generally speaking,” Kamolnick said. “But if you live in a poorer county or on tribal land, that’s not necessarily the case.”
Another key component of the Clean Water Rule was that it protected bodies of water that only flow during certain times of year or after heavy rain events. About 85% of Nevada’s tributaries, streams and small bodies of water are considered either ephemeral (flowing only during and after heavy precipitation) or intermittent (flowing during select seasons or months), said UNR freshwater ecologist and biogeochemist Joanna Blaszczak.
“That’s an incredible amount, and that’s because we’re in a sunny, arid region,” said Blaszczak, an assistant professor in the university’s Department of Natural Resources and Environmental Science.
Under the Trump Administration's replacement rule, ephemeral streams that flow "in direct response to precipitation" are explicitly excluded from federal pollution protections, even though these streams might connect to larger bodies of water when they do flow.
“When we have these ephemeral channels, although they might not be flowing most of the time, they’re almost like highways for sediment, for pollutants and for excess nutrients,” Blaszczak said.
Maggi said the repeal of the Clean Water Rule should be examined in conjunction with other environmental rollbacks by the Trump administration. The weakening of federal environmental laws like the Clean Water Act, coupled with the administration’s push for more extractive activities that could damage the environment, including drinking water, should give all Nevadans pause, he said.
“When you look at the whole picture, we’re facing a situation we haven’t faced since before these laws were on the books,” Maggi said.
This story appeared in Las Vegas Weekly.
