Note: This post transformed into an op-ed piece that the Washington Post published in the Sunday print edition on April 14, 2019, and the online edition on April 12.
WOTUS stands for Waters of the United States. When Congress passed the Clean Water Act in 1972, it gave the Environmental Protection Agency and the US Army Corps of Engineers the daunting task of defining that term.
The EPA and the Corps of Engineers then outlined what streams, rivers, lakes, seeps, springs, and wetlands the federal government, through those agencies, had the authority to regulate and protect. How much can we pollute these waters? How much can we dredge, fill, or alter them? The definition has profound implications.
Just how far upstream do we allow the federal government to regulate and protect? This has been, and remains, the nagging, haunting, question. We have been redefining that point since 1972. Congressional amendments, judicial interpretations, and federal agency rulemaking have made the definition an ever-changing target.
The Obama administration redefined the rule in 2015, and many thought it went too far upstream. The Trump administration is now attempting to redefine it again. Many think it goes too far downstream.
The comment period is open.
The good news is that citizens have full access to the proposed rule and can weigh in with comments. Links to the proposed definition and where to comment are given at the end of this post. You have until April 15.
Good luck. The revised rule document is 67 pages long. I did manage to read it, and I don’t think it’s any clearer than the current one. What is clear, however, is that the EPA and the Corps will be regulating and protecting a lot less water than they do now, burdening states with more responsibility and threatening the success of major water-quality improvement programs such as the Chesapeake Clean Water Blueprint and the Great Lakes Restoration Initiative.
What is clear in the rule?
The proposed rule clearly describes three types of surface water that the federal government will have jurisdiction to regulate: navigable waters, perennial tributaries of those navigable waters, and wetlands adjacent to those waters.
In addition to obvious lakes, bays, and estuaries, all permanently flowing streams are navigable waters. Perennial and intermittent tributaries, ones that have surface-water flow in a “typical year” to those navigable waters, are also considered Waters of the United States. The rule offers a very complicated method for defining a typical year.
The proposed rule declares that only those wetlands adjacent to navigable waters or their perennial or intermittent tributaries are protected under federal law. Adjacent means they abut or are connected by surface water. If only groundwater connects them or the surface water connection does not meet the typical year requirement, they are not protected under the Clean Water Act.
What is not clear, or what is not protected in the new rule?
Spoiler alert! . . . tributaries as defined in this proposal do not include surface features that flow only in direct response to precipitation. . . .This is on page 4,173 of the proposed rule in the federal register.
I shake my head in disbelief. Wait a minute. I thought all tributaries flowed only as a direct response to precipitation. Even groundwater that flows into surface features came from precipitation. That is how the water cycle works.
Precipitation charges all fresh-water streams, rivers, springs, seeps, groundwater, and wetlands. We must understand that all water is connected, whether it is on the surface, in the ground, in the air as water vapor or clouds, or in the vascular system of a tree—it’s all connected and part of the hydrologic cycle.
The proposed rule leaves many streams and surface features open to pollution, alteration, and judicial interpretation.
What else is not protected?
Most tributaries and all ephemeral streams. Not protected—even if they follow a defined channel.
Most wetlands. Not protected.
Groundwater. Not protected, but then it never has been. (What’s up with that?)
What should be protected?
I believe, at a minimum, all naturally formed channels that were formed by the forces of flowing water, whether they have water in them or not, should be protected under the Clean Water Act.
All wetlands should be protected. These have clearly been defined many times.
We know that the Trump administration is weakening environmental regulations. The new WOTUS rule is no exception which will profoundly limit current federal jurisdiction and enable polluters to pollute more and developers to destroy more wetlands.
For something as precious as water, I think more regulation is better than less. States are supposed to have regulatory powers over what the feds don’t. But I’m not confident states are up to the challenge. For example, in Virginia, the builders of the Mountain Valley Pipeline have been cited for over 300 water quality violations of state law and yet the pipeline is still under construction.
The proposed rule can be found at this EPA site.
The comment period closes on April 15, 2019. Please take some time to read the proposed rule, and if compelled, make your comment here.
Water is precious. We need to protect it.
For more information visit the Southern Environmental Law Center.
At the risk of this being too political a statement I offer this. The issues described, as important as they are, are only a ‘trickle’ in the flood of anti-environmental actions being instituted by this administration. That will subside only when more environmentally conscious people are in charge of national policy. Our only hope at this juncture is to try to ‘stem the tide.’ Check this out. https://www.nbcwashington.com/news/local/Loudoun-Co-Notifies-Trump-National-Golf-Club-of-Violations-for-Removing-Trees-506798121.html
Awesome comment, Roger. Thank you.
I am grateful there are people like you who do the ground work and the hard work to protect the natural resource that means the most to plant, animal, and human survival. I made a comment. Although I do not agree with everything he says, Michael Moores’ movie Fahrenheit 11/9 addresses what happened in Flint Michigan as part of his explanation on how the USA happened to elect Trump.
Great comment, Charlie. Thanks for commenting also.
Ephemeral streams and simple drainages lose their “ephemeralness” during prolonged periods of wet weather such as we have had since last spring. Those drainages are the overland conduit for the nutrient and bacteria laden runoff that is headed for streams and rivers. There are drainages in my fields that started flowing last June and are still wet now. The lesson from the past year’s wet weather is that when it’s dry, those drainages seem unnecessary, but when it’s wet, they serve a vital function – kinda like the gutters on your house.
Buffers along those conduits not only provide immense filtration of the nutrients and bacteria coming off the fields but they keep the soil in place. How can we protect streams and rivers from the inflow of nutrients, bacteria, and sediment without protecting those conduits?
Of course, the EPA and the Army Corps are just bending over for the Trump Administration. If they really cared, this would never have been proposed.
Spot on, Joe! Thank you.
Thank you Mr. Whitescarver for providing photos of some of the kinds of resources which will be in jeopardy. Although I retired from EPA 16 years ago, I still know a few folks in the Office of Wetlands, Oceans, and Watersheds. They are good people and understand and respect science. I’m sure that many of them are heartsick about this proposal. But, the career staff of the Agency doesn’t get to make policy. They develop options, explain consequences, but ultimately follow the direction of the Presidential appointees they work for. After gross mischaracterization of the Obama rule by some farm organizations (AFBF notably), transportation departments, golf course developers, and others, President Trump issued an Executive Order early in his term directing EPA and Army to propose this rule. Because water does flow downstream, and even isolated wetlands perform very important ecological, biological, and flood protection functions, there is no question that, if implemented, important aquatic resources will be unprotected by Federal law and very likely serious destruction will follow. I hope the rulemaking is not implemented before a wiser leader occupies the White House and rejects this course. But in the meantime, the EPA and Army staff deserve our sympathy, not our disdain.
Bob, thank you very much for your insightful comments. I totally agree.
Great article Bobby.
Question. Confirm please. Does this proposed change reduce protection at Federal level, and puts the responsibility on States to enact their own legislation to protect these resources?
I’m inspired by the work of Maya van Rossum, Delaware River Keeper, and her effort to establish a Federal Green Amendment ” The Green Amendment movement is inspiring communities across the nation to secure their own constitutional right to a healthy environment by pursuing Green Amendments in every state constitution and ultimately at the federal level..” A Federal Green Amendment would thwart such ridiculous efforts by “profit only” generated mind set peoples who just don’t get it, we ALL live on the same planet and are dependent of the services it supplies.
PA has a Green Amendment of sorts and it has been used recently to strike down similar efforts to change our state environmental protection laws.
Yoyos like the current administration should not have the right to remove the right of all North Americans to clean air, clean water, healthy soil – healthy environments!
Margot, thanks for stopping in and posting your comments. To answer your question, yes, there will be less protection from the feds which puts more responsibility on the states.
Unfortunately, a large number of states have adopted provisions in their own laws that prohibit their environmental agencies from being more stringent than Federal law. Virginia’s water law will apply to most or all of the areas that would be excluded from the Clean Water Act. Then the question becomes what WILL the state allow to happen to the waters in which pollution may be discharged only with a permit. The requirement to obtain a permit does not necessarily mean that a permit will be denied or that impacts must be minimized.
Spot on, Bob.
Thanks, Bobby, for getting the word out. I have posted a comment, and I hope everyone who reads your piece will do the same. It’s beyond comprehension how our current government can ignore the life and death issues the EPA was meant to protect, while allowing industry to have its way in all areas, the pipeline being just one example.
Sally, thank you. I agree.
I agree this is something we need to be concerned about. I have no doubt that this rule will try to deregulate the protection of streams as much as possible. I also think we have to be understanding of the burden this could place on farmers if it became mandatory to fence every trib. Joe makes a valid point but the miles of fencing needed would be so great there would be no hope of finding the money to do it.
I would propose a watershed size as an upper limit. There would have to be some allowance for streams originating from springs perhaps and that might be complicated. There should also be allowances for land use types and crops but there has to be some upper limit. I have not read the proposed changes so and am also not familiar with the details of the existing regulations. Regardless, I do not trust the present administration to strike any kind of reasonable balance.
Thanks, Urbie. Yes, the upper limit is the haunting and daunting question. What if we just had all blue line and intermittent streams as delineated by USGS on topo maps as the upper limit? We could stop wasting all this time over defining this point.
Good article just a couple clarifications. The caption for the picture of the intermittent UNT to Middle River in VA would be jurisdictional under the new rule – I think this was in error because you do state in the article that perrenial and intermittent will be WOTUS.
Also just because you can kayak or float down a stream doesn’t make it navigable. A water body qualifies as a “navigable water of the United States” if it meets any of the tests set forth in 33 C.F.R. Part 329 (e.g., the water body is:
(a) subject to the ebb and flow of the tide, and/or (b) the water body is presently used,
or has been used in the past, or may be susceptible for use (with or without reasonable
improvements) to transport interstate or foreign commerce). The Corps districts have
made determinations in the past regarding whether particular water bodies qualify as
“navigable waters of the United States” for purposes of asserting jurisdiction under
Sections 9 and 10 of the Rivers and Harbors Act of 1899 (33 USC Sections 401 and
Pat, thanks for stopping in and posting your comment. The intermittent tributary in the post, the one that’s a trib of Middle River only flows when it rains, so there is some debate as to whether it qualifies or not. I can’t agree on your second point either, I think that is debatable as well.
The Rivers and Harbors legislation was adopted in 1899. It was one of several laws which preceded the comprehensive 1972 Law popularly known as the Clean Water Act. While the term navigable was imported, along with the role of the Corps in permitting dredge or fill discharges, the authors redefined “navigable” to be “waters of the US” -clearly a broader definition. The legislative history is replete with statements that the intention was to broaden protection from all forms of pollution, not just police placement of obstructions to navigation. The Senate Floor manager explained that the objective of the new definition was to broaden the meaning as far as the commerce clause of the constitution would allow. It’s a shame that the language of the law was not drawn to simply eliminate reference to navigation since it gives rise to much confusion. Rivers and Harbors jurisdiction is undeniably different from and narrower than Clean Water Act jurisdiction. There are statutory and regulatory exemptions for agricultural activities which take place in jurisdictional waters. Although excluding cattle from streams is a good practice, the Clean Water Act does not require it. Literally billions of $ have been paid to farmers and ranchers to encourage them and assist them to protect water bodies.
Being that I have reviewed many of the comments already posted, the essential talking points in this matter have already been addressed. The citizens are well-informed about the scientific criteria which shows how dangerous and polluting these structures will be to our environment and to all of those who are dependent upon clean air, soil and water for life. We have repeatedly and clearly articulated this information to those in power and, under the policies of the current administration, we continue to be ignored. The voices of the people must continue to be spoken; those who wield political influence (such as Al Gore and others) must continue to stand up and support the will of the people. Organizations such as the Southern Environmental Law Center must continue to file motions of legal resistance, to further impede the ongoing crush of those who care only for quick profits and are entirely disconnected from any manner of empathy for others.
This is painfully clear in the instance of the people living at Union Hill, in Buckingham County (80% African-American inhabitants) where that well-known compressor station is slated to be built. FERC’s own Draft Environmental Impact Study (DEIS) based on out-dated criteria, shows that the toxic gasses emitted by such a structure would certainly affect the people there with illnesses such as lung cancer and asthma. In the weeks since Governor Northam has become embroiled in the “Black Face Scandal”, Notham has pledged to do the “Hard work” necessary to make amends to the citizens of Virginia but he obviously did not mean to include the residents of Union Hill among these. He shows no signs of changing his plans for building the compressor station intended here, nor for the ACP and MVP projects across our state. Obstruction and delay is our best course of action in these matters.
Thank you, Phillip. Well said.
Bobby, I need to contact you to find out how to devote my land to horticultural use. Pls send me an email.
Thanks (I don’t seem to be able to see the captcha??)