Soon after it was announced, the EPA tweeted: “We’re committed to working with the states and stakeholders through a collaborative public review of #WOTUS,” and said that the decision was in partnership with the Army. This move was expected; President Donald Trump issued an executive order earlier this year to review WOTUS and make sure it promotes “economic growth” and minimizes “regulatory uncertainty.”
Under the Clean Water Act of 1972, the EPA was allowed to regulate navigable rivers and lakes. But 2 million miles of headwaters and streams that flow seasonally, plus 20 million acres of wetlands, weren’t included in that jurisdiction. In 1985, the Supreme Court ruled wetlands could be included, but then Supreme Court cases in 2001 and 2006 confused the matter. The 2015 rule sought to clarify all this. It is largely technical, defining which rivers, streams, lakes and marshes fall under jurisdiction of the Army Corps of Engineers and EPA so that landowners and companies can’t pollute them. As Politico reported in 2015, WOTUS extended protections to tributaries that have signs of flowing water, ditches that act like waterways, and regional water features such as coastal bays in the Carolinas. It gives federal oversight to some 60 percent of waterways in the U.S. Some of these determinations are made on a case-by-case basis.
However, the rule was never fully implemented, stuck in federal appeals court since 2015, and no one knows exactly which waterways would be included. The main argument against WOTUS is that it is a power grab by the federal government to control everything from puddles to ditches — and that it should be up to states to decide how to define and control waterways. Some of the biggest opposition has come from ranchers and farmers who have streams or ditches running through their properties and energy companies that would have had to retrofit facilities to ensure they don’t contaminate water.
This week, many lawmakers from around country are applauding Pruitt’s decision. It is a win for big industries; without WOTUS, development near waterways is much easier. Here’s an example of this rhetoric, from a public statement by West Virginia Democratic Senator Joe Manchin: “I’m happy to see these agencies moving forward with re-evaluating this rule which was overly burdensome to a huge number of economic activities in West Virginia, including highway and road construction, pipeline projects, transmission line projects, farming, flood control measures, housing construction and public works projects. We all want to drink clean water and breathe clean air, but we can achieve this without regulating hard-working West Virginians and Americans out of business.”
The rule is confusing, making it difficult for landowners to know what counts as what type of waterway without hiring expensive consultants. But scrapping WOTUS would allow landowners to decide how to define and treat water sources, which extend far beyond one farm or even state borders. For instance: In North Carolina,the Clean Water Rule restored federal protections to more than half of streams that feed waterways and provide drinking water to 4.7 million people. An attorney from the Southern Environmental Law Center said that Alabama has more than 130,000 miles of streams, rivers and wetlands, so this “puts a significant portion of those waters and wetlands in jeopardy.” Officials and environmental advocates in South Carolina expressed similar concern. Appalachian waterways also stand to be impacted, and this comes on the heels of Trump quashing the Stream Protection Rule, which aimed to prevent coal mining companies from dumping toxic waste into streams.
If Pruitt wants to make a new rule, it will undergo a public comment period and will most likely be challenged in federal court again, since a core mission of the EPA is ensuring communities have clean, safe drinking water. As climate change and development continue to impact water resources, that mission becomes more critical and complicated. Clarifying WOTUS is important, but this decision is seemingly based on agriculture, real estate, and industrial interests, not clean water. Now, it could take years to decide the fate of waterways — time we just don’t have.
Stories worth your time
InsideClimate News reports from rural southeastern Georgia, where a community and its newspaper investigated and fought back against a company that planned to dump 10,000 tons of coal ash waste a day into the local landfill.
I visited Lowndes County, Alabama, a poor, rural area that lies between Selma and Montgomery and is full of Civil Rights Movement history. For Undark, I reported on the ongoing issues of flooding, disease, and pollution because of the lack of wastewater infrastructure, and how that’s increasing with climate change.
News flying under the radar
Mississippi was supposed to have the first “clean coal” power plant, but Southern Company decided it was too expensive and the technology was unproven. It’s going to be a natural gas plant, instead.
Late Monday night, North Carolina lawmakers added amendments to a solar reform bill that would impose a three-year moratorium on wind projects and reduce commitments to solar.
After serious lobbying by the coal industry, a House committee passedthe Revitalizing the Economy of Coal Communities by Leveraging Local Activities and Investing More Act of 2017 (more often called RECLAIM), which puts abandoned mine land to use to improve Appalachian economies.