“Reconsidering” WOTUS: why Trump’s latest Executive Order matters
This afternoon, Donald Trump signed his latest Executive Order and #WOTUS is trending on Twitter.
WOTUS isn’t exactly a household acronym, and the text of the EO, which has been making the rounds since yesterday, is just as deceptively innocuous. So, what exactly is WOTUS? What makes it important enough to become the target of the latest Trump executive order?
WOTUS stands for “waters of the United States,” and is used in various contexts to refer to bodies of water controlled by the Federal government. The EPA’s Clean Water Act of 1972 relies on the phrase to describe the law’s scope, but in recent decades various groups have challenged the exact definition and reach of WOTUS. Multiple Supreme Court decisions have further muddied the waters; in the most recent case, Rapanos v. United States, Justice Antonin Scalia was joined by Justices Roberts, Thomas, and Alito in a plurality decision (no majority) arguing that WOTUS should only apply to bodies of water with “continuous surface water connection" to “navigable waters,” an extremely narrow definition essentially limited to lakes and major rivers. An earlier standard, referenced by Justice Anthony Kennedy in his decision for Rapanos v. United States, more broadly references bodies of water with any “significant nexus” to navigable waters — in other words, any bodies of water which, if polluted, could ultimately impact major waterways. The court was split 4–1–4, leaving the issue unresolved.
In 2015, the Obama administration took a stand with its Clean Water Rule. Drafted by the EPA and Army Corps of Engineers, the Clean Water Rule was meant to settle the WOTUS issue. The Clean Water Rule embraces the “significant nexus” standard, protecting all tributaries — including streams, wetlands, and headwaters — that flow into larger waterways. Republicans immediately launched an attack on the rule’s WOTUS definition, passing a joint resolution to overturn it, which President Obama promptly vetoed. The 2016 election results had barely been tallied when Republicans began teeing up for another assault, with Trump and his then-nominee for EPA Administrator, Scott Pruitt, both pledging to do the same.
What the WOTUS controversy comes down to is this: history repeats itself. The Clean Water Act was one of the EPA’s first actions for a reason: a driving force behind the EPA’s creation was the toxic state of our nation’s waterways by the middle of the last century. Major rivers were so polluted they were catching fire. Sewage was being openly dumped into the Potomac, the major river running through our nation’s capitol. The majority of U.S. waterways were too toxic for people to safely swim or fish — not that fish populations were thriving, anyway.
Industry and agriculture were the main culprits, with factories dumping waste into nearby rivers and agricultural runoff poisoning the nation’s waters with pesticides and other chemicals.
Today, industry and agriculture remain two of the main interest groups fighting against the Clean Water Rule, joined by two new allies — real estate developers, who want greater leeway to fill in marshlands and minor tributaries for property development, and extractive industries — particularly natural gas and coal. It’s no coincidence that the 13 States that sued the Federal government over the Clean Water Rule were led by North Dakota — a state that’s home to one of our country’s largest fracking booms.
Opponents of the expanded definition of WOTUS argue that it’s too broad, that it encompasses too many minor bodies of water. In reality, making the distinction between minor bodies of water and “navigable waters” is venturing into distinction without a difference territory. All of our country’s “navigable waters” are fed by wetlands, streams, small rivers — non-navigable waters. From headwaters all the way down, if pollutants enter our waterways at any point along the way, they’ll ultimately find their way to navigable waters as surely as if they’d been dumped there in the first place.
And it’s not only environmental groups that recognize this. Traditional hook and bullet groups, advocating on behalf of the nation’s hunters and anglers, have been among the most vocal supporters of the Clean Water Rule and its broad definition of WOTUS. In response to the argument that the Clean Water Rule was just another job-killing regulation, John Gale, conservation director for Backcountry Hunters and Anglers, told Hatch Magazine: “The only threat to jobs here are the ones that connected to hunting, fishing, and healthy ecosystems that support fish and wildlife populations, in addition to feeding rural economies that rely on outdoor recreation.”
Trump’s executive order doesn’t kill the Clean Water Rule, or re-define WOTUS. The CWR is established law, and significant alterations will likely take a year or longer. This EO is a public instruction to Scott Pruitt — a declaration of intent. With the EPA under attack, everything is back on the table. The right to pollute our waterways is once again for sale.
