By Peter Chawaga, Associate Editor, Water Online
Since its inception, the Waters of the U.S. (WOTUS) rule has drawn ire from some while soliciting support from others, remaining difficult to consistently interpret throughout.
It first arrived as part of the Obama administration’s Clean Water Rule, a 2015 regulation from the U.S. EPA and United States Army Corps of Engineers to add clarity to how water resources should be managed under the Clean Water Act of 1972. WOTUS was meant to clarify the source waters that fall under federal protection and jurisdiction, highlighting the streams and wetlands that are connected to navigable waters, interstate bodies, and territorial seas that carry federal interest.
Along with the federal protection promised through WOTUS has come the perception of federal overreach and infringement of landowner rights. As such, the Clean Water Rule and it WOTUS provision has been challenged by Republicans and leaders on both the right and left with interests in preserving agricultural and energy. To this point, dozens of lawsuits and a nationwide stay has hindered EPA attempts to implement the new Clean Water Rule standards.
And, with the election of Donald Trump, the Clean Water Rule seems all but doomed. In February, Trump issued an executive order calling for the rescindment and replacement of the Clean Water Rule, “restoring the rule of law, federalism, and economic growth.” Trump’s EPA administrator Scott Pruitt has put WOTUS firmly in his sights. The most recent and significant move toward that end to date has been a “recodification” effort this summer, bolstered by a recent economic analysis to demonstrate issues with the rule.
“Through new rulemaking, the EPA and the Army seek to provide greater clarity and regulatory certainty concerning the definition of ‘waters of the United States,’ consistent with the principles outlined in the February 28, 2017 executive order and the agencies’ legal authority,” said an EPA spokesperson.
The EPA plans to recodify the regulatory text that was in place before the Clean Water Rule and which is still technically in place because of the nationwide stay.
Until the end of the month, the EPA is soliciting public comments on how to recodify WOTUS. A new definition, consistent with Trump’s executive order and consultation with state and local governments, is currently being worked on.
“The February order states that it is in the national interest to ensure that the nation’s navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles for Congress and the states under the Constitution. To meet these objectives, the agencies intend to follow an expeditious, two-step process that will provide certainty across the country.”
But not all parties agree that aborting the Clean Water Rule and WOTUS is in the best interest of the country. Proponents of the 2015 regulations cite them as critical to protecting the quality of the country’s source water from industrial pollution. Within the EPA, the rampant deregulation that has marked Pruitt’s early tenure has caused some dissent. For instance, Elizabeth Southerland, a 30-year EPA official, stepped down over concerns that Pruitt is “pursuing policies that promise to repeat human health and environmental catastrophes, such as Flint, Michigan’s drinking water crisis.”
And outside environmental groups are likely to see the rescindment of WOTUS as one of those policies.
“The Clean Water Rule, also known as WOTUS, resolved longstanding confusion over which bodies are protected under the Clean Water Act, including small streams and wetlands,” said Melanie Benesh, a legislative attorney at the Environmental Working Group. “More than 117 million Americans get at least some of their drinking water from these sources. Clarifying that they are covered under the Clean Water Act allows the government to take actions limiting pollution into these bodies of water.”
While potentially limiting to industry and agriculture, oversight like the Clean Water Rule can be a critical tool for those who want to protect these water sources and help utilities tasked with providing drinking water from them.
“EPA’s efforts to rescind the Clean Water Rule and replace it with a new rule means that it’s more likely that the new rule will only cover larger bodies of water, which could exclude almost 2 million miles of streams that don’t flow year-round and the end of Clean Water Act protection for countless acres of wetlands, which act as a natural filter,” Benesh said. “If small streams are unprotected, it makes it harder to keep protected waters like big rivers clean. This creates work for drinking water treatment facilities to remove harmful contaminants. It also makes it harder to ensure drinking water is clean.”
While rescinding the Clean Water Rule is unlikely to have major immediate effect on water quality, as it isn’t currently enforced, it stands to reason that less regulation is never a good thing for source water quality and drinking water utilities.
As the EPA crafts a new rule, groups like Benesh’s are weighing their options to challenge it.
Image credit: "Environmental Protection Agency," Ilia Alshanetsky, 2010, used under an Attribution 2.0 Generic license: https://creativecommons.org/licenses/by/2.0/