Save The Waters of the United States Rule

By Kenneth M. Klemow, Ph.D., professor of biology and environmental science and associate director of the Institute for Energy and Environmental Research at Wilkes University in Pennsylvania. Klemow is an ESA Fellow and a Certified Senior Ecologist. This essay was originally published in The Huffington Post on February 8, 2017.


Wood River Wetland in Oregon. Credit, Greg Shine/BLM CC BY 2.0.

During his presidential campaign, Donald Trump repeatedly proclaimed that he would “drain that swamp” in Washington.  As a wetland scientist, that phrase grated on me because – if taken literally – it advocated an activity that runs afoul of regulations contained in the Federal Clean Water Act.

In late October, I wrote a short Op Ed expressing my concern for the phrase, while extolling the values of wetlands. Happily, a few newspapers in my home state of Pennsylvania picked up the piece, and published it in print and online.  Most of the reader comments posted to the online versions were critical – stating that I was too literal, finding fault with a colorful, useful phrase.  They argued that it is just a slogan, having nothing to do with actually draining swamps.

But a section of the new White House website proclaiming its “America First Energy Plan” proves otherwise.  There, the Trump administration notes: “For too long, we’ve been held back by burdensome regulations on our energy industry. President Trump is committed to eliminating harmful and unnecessary policies such as the Climate Action Plan and the Waters of the U.S. rule.”

Casting aside the part about the Climate Action Plan, the “Waters of the U.S. Rule” is worth examining – and asking whether it really represents a “burdensome regulation.”  I argue that it does not.

The Environmental Protection Agency and the US Army Corps of Engineers finalized the Waters of the United States (WOTUS) Rule in late May 2015.  Its purpose was to clearly define which areas qualified as Waters of the United States, and thus worthy of receiving protection under the Federal Clean Water Act of 1972.

Enacted during the Nixon administration, the Clean Water Act protects navigable waterways such as rivers and lakes from water pollution.  But to do so, Congress wisely included protections for tributary streams and their adjoining wetlands. Such wetlands benefit people living downstream by preventing flooding, restoring groundwater, removing pollution, and providing habitat for fish and wildlife.  Further, about 117 million Americans get their drinking water from streams protected by the Clean Water Act.

Since the late 1970s, the Corps regulates wetlands, streams, ponds, and other water features on both private and public lands.  Landowners with such features on their property have to obtain a permit from the Corps whenever they want to develop those areas.  Such restrictions rankle many developers, and the government has been repeatedly sued over the law.

Supreme Court decisions in 2001 and 2006 mandated the Corps to prove that a particular wetland, stream or pond clearly benefitted a downstream navigable waterway: a time-consuming and costly procedure considering the thousands of regulated wetlands and watercourses in the U.S.

To streamline the process of identifying Waters of the United States (WOTUS) on parcels of land, the EPA and Corps jointly developed a set of rules that defined regulated bodies of water within the U.S.  They produced an initial document based on scientific expertise and research. Public review followed, garnering over one million comments. In addition, they conducted more than 400 meetings with multiple stakeholders nationwide.

Significantly, the WOTUS rule declared that tributary streams and adjoining wetlands had sufficient connections to downstream rivers and lakes to be automatically declared Waters of the United States.  Thus, further assessment by the Corps or the EPA would not be needed.  Property-owners and developers would therefore benefit by more quickly knowing whether they need to file a permit application.

As written, the rule actually reduced the acreage declared to be Waters of the United States by eliminating drainage ditches and other landscape features that flow only after rainfall or snowmelt.  Similarly, the regulations also excluded areas used for agriculture, forestry, and ranching.

Following their publication in the Federal Register in August 2015, the WOTUS rules were quickly challenged in the courts.  Hours before the rules were to take effect, a North Dakota judge imposed a stay that affected 13 midwestern states.

Since then, many Republicans, nearly thirty states, and a range of business interests attacked the law, claiming that it represented a major overreach of federal power – despite the fact that the law was designed to merely clarify existing Corps and EPA practice.

In May 2016, the US Supreme Court ruled that wetland determinations by the Corps are reviewable by courts – and are not automatically binding, as suggested by WOTUS.  In his decision, Justice Anthony Kennedy wrote that the Clean Water Act “continues to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation.”  While sweet words to developers, that viewpoint fails to recognize the benefit of the Act, enhancing water quality nationwide.

Prospects for the WOTUS rule will dim considerably if the Trump Administration follows through with its pledge articulated on the White House website.  Ominously, Oklahoma Attorney General Scott Pruitt (R), who has been tapped to lead EPA, has sued the agency over the WOTUS rule and has promised to withdraw it if confirmed.  But repealing the rule cannot be done by Executive Order; it will require extensive public hearing based on evidence.

Opponents of the WOTUS rule fail to appreciate that removing the regulation would again force the Corps to perform laborious and costly case-by-case analyses of each wetland’s connections to downstream water conditions. They also overlook the role that wetlands and tributary streams play in helping to protect the quality and hydrology of navigable waters, which is the clear intent of the Clean Water Act.

But the rule has its supporters.  Anglers are concerned about the loss of prized fisheries habitat should stream protections disappear.  A brewery in North Carolina joined a lawsuit asking the Sixth Circuit Court of Appeals to uphold the clean water rule – one of several that are pending.  The National Wildlife Federation and grassroots organizations like the Citizens Campaign for the Environment are waging campaigns to support the rule.

Unlike the Obama-era Clean Streams Law that Congress quickly overturned in early February, the WOTUS rule will be much more fully litigated.  If saner minds prevail and the rule is allowed to be implemented, we will have a streamlined and clearer definition of areas that qualify as Waters of the U.S.  Developers, other businesses, and municipalities would benefit from that clarity.  Far from being an overreach, it is a scientifically defensible approach to keeping navigable waters clean.

For the sake of America’s vital waterways, neither the President nor Congress should gut the Waters of the United States Rule.  Clean water, protection against flooding, and recreational opportunities are all part of what makes America great.  For that reason, I urge you speak out to help save the WOTUS rule.