By Molly Kordas, Openlands Staff Attorney
On June 22, 2020 the Trump Administration’s new definition of “Waters of the United States” (WOTUS) will become effective, concluding a highly controversial four-year process to repeal and replace the Obama-era Clean Water Rule (CWR).
So what does “WOTUS” mean?
The Clean Water Act (CWA) was passed “to restore and maintain the chemical, physical and biological integrity of the Nation’s waters.” But what exactly did Congress mean by “the Nation’s waters”?
This is the crux of the WOTUS issue: In the context of environmental laws founded upon essential cooperation between federal and state governments, which waters did Congress intend to be governed federally? And what constitutes “water?” Is it simply rivers, lakes, and streams that we can see flowing year-round, or did Congress intend to recognize that all water is connected?
Properly defining the scope of the CWA is vital to giving effect to the Act’s protections and achieving its purpose. “WOTUS” has been revised many times in attempts to clarify which waters are regulated under the CWA. But in that first rewriting of the Act in 1972, Rep. Dingell said that the bill “define[d] the term ‘navigable waters’ broadly for water quality purposes” and that the term “clearly encompasses all water bodies, including their main streams and their tributaries.” And Rep. Jones said that Congress sought to “proclaim to all Americans that Congress has the will and the leadership to save our priceless waters from the degradation that is fast destroying them.”
In short, Congress saw pollution wreaking havoc on waters across the country: Rivers were on fire. Public health was under threat from cancerous pollutants and toxic poisons. Congress responded with a comprehensive law, resolving to make all our waters “fishable and swimmable” by 1983 and to eliminate all discharges of pollutants in our waters by 1985. This was an ambitious goal then, and one that continues to drive us today; but it is a difficult balance between federal and state responsibility.
Why is this new rule such a big deal?
For decades, the scope of the CWA has been debated and litigated, resulting in a messy patchwork of federal law. Several administrations have attempted to clarify the scope of the CWA, all of which proved controversial. The 2015 CWR led to three years of litigation, many arguing the CWR expanded the scope far beyond what Congress intended. In response, the Trump Administration almost immediately ran in the opposite direction, repealing the rule and replacing it with the narrowest definition of WOTUS in nearly 50 years.
A 2017 executive order required agencies to review and rescind the CWR and revise the rule “in a manner consistent with the opinion of Justice Scalia in Rapanos.” Justice Scalia’s narrow interpretation of the CWA in that case, however, differed significantly from Justice Kennedy’s opinion which formed the basis of the Obama Administration’s CWR. Given President Trump’s passionate advocacy for deregulation, it is not difficult to understand why he chose Justice Scalia’s interpretation as the guiding principle for the new rule.
Traditionally, the WOTUS definition includes standard categories. The Trump Administration removed the category of “interstate waters” in its entirety and made significant changes other categories, two of which are:
The new rule eliminates the CWR’s “significant nexus test” which determined WOTUS status of adjacent waters and tributaries based on their ecological nexus with another WOTUS. The definition also excludes any tributaries with only ephemeral flow, or waters that flow only in response to precipitation. This excludes many headwater streams, which sustain the health of the entire downriver system, making up roughly 50% of total stream miles in the U.S.
The rule also excludes wetlands lacking a “direct hydrologic surface connection” to another WOTUS. Wetlands provide habitat for more than 40% of Illinois’ threatened and endangered species. They also control flooding, prevent erosion, and remove sediment, nutrients, and toxic chemicals from runoff water. Furthermore, geographically isolated wetlands without a surface connection remain hydrologically connected and perform many of the same functions as adjacent wetlands.
This new rule has left many wetlands and headwater streams unprotected and vulnerable to degradation and destruction. Excluding categories of waterbodies essential to water quality from the definition is dangerous and out of step with the entire purpose of the CWA. While we have certainly not seen the end of this debate, it’s important that the environmental community looks further into the future, and these questions are particularly relevant now as we celebrate American Wetlands Month in May.
What do we want the future to look like? Is it still our goal that all waters be fishable and swimmable? We can’t afford not to. Advocating for a more permanent legislative fix, that listens to scientists, could finally renew our nation’s commitment to a clean, resilient, and healthy environment for all people.
You can learn more about WOTUS and Openlands work advocating for its protection through this webinar.