Clean Water Act reinvigorated but future environmental challenges still ahead in Bay Area, state

ByTim Didion, Spencer Christian KGO logo
Saturday, January 14, 2023
Clean Water Act reinvigorated but future challenges still ahead
Rules just finalized by the Biden administration re-confirm the California EPA's jurisdiction over inland waterways that were previously challenged.

SAN FRANCISCO (KGO) -- Environmental groups say the creeks and streams swollen by our recent storms are a perfect example of a system the Federal Clean Water Act was designed to protect, an interlaced web of sometimes seasonal waterways that flow into San Francisco Bay.

Teams from the San Francisco Estuary Institute, and other groups like San Francisco Baykeeper, keep a close watch on pollutants that ultimately reach our wider ecosystem.

"And that's why it's so important to be able to control those things at the source and that's what the Clean Water Act does for those waters that are protected. If you can stop those pollutants from where they start before they wash into the Bay. As you can get rid of them, you can have a clean and thriving Bay ecosystem. Once they get into the bay, it's real hard to then clean it out later," said Eric Buescher, managing attorney for Baykeeper.

And for now, California's Environmental Protection Agency will have a broader mandate to do that. Rules just finalized by the Biden administration re-confirm the agency's jurisdiction over many inland waterways that were challenged during the Trump administration.

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"There are more than three-quarters of the tributaries that flow into the bay are intermittent streams and creeks that are dry for large portions of the year or large portions of several years when we're in a drought. Those intermittent streams and creeks return when there's water," Buescher said.

Other wetland areas around the Bay are also potentially affected, including a saltmarsh property on the shoreline of Redwood City that's been at the center of a development battle for more than a decade. But while the Biden administration policies restore much of the reach of the Clean Water Act, another major challenge could be just months away.

Sam Sankar is with the group Earthjustice, which is helping to challenge a case currently before the United States Supreme Court.

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"The worst case scenario is that the Supreme Court takes an extraordinarily restrictive view of the language of the Clean Water Act," says Sankar.

The suit was brought by an Idaho couple, challenging the reach of regulations applied to waters on their private property. But environmental groups argue that it's also a crucial test case -- supported by a range of industries -- eager to roll back or restrict the EPA's use of the Clean Water Act, only applying it to larger bodies of water.

"And that smaller waters, and wetlands really weren't in the mind of Congress at all. That would be I think, from my perspective, just flatly wrong. If you look at the record, and if you look at the actions of the Congress of the time and, indeed, the stable regulatory history over nearly 50 years of the implementation of the Clean Water Act," Sankar said.

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If the reach of the act is rolled back, some observers believe California could be forced to legislate more sweeping laws at the state level. Always with the possibility those could eventually be challenged in another wave of lawsuits over a regulatory system used for more than half a century to protect the waters of America.

Coincidentally, October marked the 50th anniversary of the Clean Water Act, which has been the subject of some debate from the beginning. President Richard Nixon originally vetoed the bill, congress then voted to override his veto.

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