Muddy Waters: In Defense of a Misunderstood Environmental Protection

Muddy Waters: In Defense of a Misunderstood Environmental Protection

By Keni Ukabiala, Staff Contributor 

In late February, President Trump began dismantling President Obama’s Clean Water Rule, or WOTUS[1], when he signed an executive order directing the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers to review the rule.[1]  This marks the beginning of eradicating the 2015 rule, which established federal authority to use the Clean Water Act to regulate pollution of streams, wetlands, and waterways.[2]  It also marks a promise made on the campaign trail by President Trump, which was widely met with exuberant support from many of his supporters.[3]

It is important to note that President Trump’s executive order would not actually constitute a repeal of WOTUS, as the rule has not yet gone into effect due to impediment in the Court of Appeals or the Sixth Circuit.[4]  WOTUS has faced significant criticism, characterized as overly complex and as executive overreach.[5]

However, one should be careful and reticent to immediately dismiss WOTUS as an example of federal overreach under the previous administration.  The repeal of the WOTUS Rule will be a hindrance to both environmentalists and industry because regulators and courts will have to address every contested body of water on a case by case basis.

WOTUS may not appear to be such a big deal to many. Congress has had the power to regulate discharges into navigable waters since the passage of the Clean Water Act in 1972.[6]  The real issue was what constituted a navigable water.  In Rapanos v. United States, Justice Kennedy determined that Clean Water Act protections applied to wetlands that “significantly affect the chemical, physical, and biological integrity of other covered waters.”[7]  To the contrary, Justice Scalia determined protections only applied to wetlands “with a continuous surface connection” to navigable water.[8]  It wasn’t entirely clear which opinion took precedence and so the following jurisprudence was quite messy due to the fact courts had to resolve any issue pertaining to a Clean Water Act permit on a case by case basis.[9]

WOTUS intends to identify which bodies of water constitute navigable waters and thus fall within the purview of the Clean Water Act of 1972, which made it illegal to discharge any pollutants into “navigable waters” without a permit, to ensure safe drinking water and habitats for humans and aquatic life.[10]  The final WOTUS rule outlined which bodies of water were automatically covered by the Clean Water Act and which would be subject to case by case analysis.[11]

WOTUS does not create any new regulations. It simply seeks to clarify an amorphous rule, alleviating courts from scrupulous case by case analyses of just what constitutes a navigable water. Many argue, in opposition to President Trump’s claims, that WOTUS is good for business. This argument is based on the premise that the rule makes life easier for businesses because concretely outlined definitions would aid their understanding and application of the regulatory issues involved.[12]  Further, the rule creates no more confusion for agriculture, as it left those applicable rules entirely unchanged creating no new requirements.[13]  Indeed, the rule went so far as to exempt several bodies of water often found on farms.[14]  It was argued that WOTUS didn’t significantly expand the waters under its jurisdiction, but only created more certainty for about three percent of the nation’s waterways to preserve judicial economy by avoiding litigation over every nitpicky gray area.[15]

Supporters say that WOTUS is needed to ensure safe drinking water.[16]  President Trump’s executive order evinces a preference for corporate producers over that of the health of the public health.  Many states lack the resources and ability to ensure healthy streams and clean water, and WOTUS brings such waters within the purview of the federal government, ensuring compliance and safety for all the public.[17]  Finally, the benefits of WOTUS go beyond safe drinking water, but also include financial benefits by way of reducing flooding, protecting wildlife habitats, and supporting hunting, fishing, and water recreation activities.[18]

WOTUS was an estimable step in the right direction for the environment and public health. It clarified a convoluted area of jurisprudence and assured health and safety for the public at large. Luckily, it will not be easy for President Trump to repeal the rule, as his administration will have to go through the federal rule making process.  However, his meretricious move serves as just another impediment to ensuring adequate environmental protections for the American people.

 

[1] WOTUS is an acronym for “Waters of the United States.”

[1] Timothy Cama, Trump moves to kill Obama water rule, The Hill, (Feb. 28, 2017), http://thehill.com/policy/energy-environment/321610-trump-directs-epa-to-reconsider-obama-water-rule.

[2] Id.

[3] Id.

[4] Id.

[5] Brad Plumer, Trump begun dismantling Obama’s EPA rules. First up: the Clean Water Rule, Vox, (Mar. 1, 2017), http://www.vox.com/energy-and-environment/2017/2/28/14761236/wotus-waters-united-states-rule-trump.

 [6] Clean Water Act, §101, 33 U.S.C. § 1251(b) (1972).

 [7] Rapanos v. United States, 547 U.S. 715, 780 (2006) (Kennedy, J., concurring).

[8] Rapanos v. United States, 547 U.S. 715, 717 (2006).

[9] Plumer, supra note 1.

[10] Id.

[11] Id.

[12] Meghan Bartels, The Waters of the United States (WOTUS) Rule: What It Does and Why It’s Important, Audubon, (Mar. 1, 2017), http://www.audubon.org/news/the-waters-united-states-wotus-rule-what-it-and-why-its-important.

[13] Id.

[14] Plumer, supra note 1.

[15] Id.

[16] Susan Phillips, Trump Aims to ‘Eliminate’ Clean Water Rule, NPR, (Feb. 28, 2017), http://www.npr.org/sections/thetwo-way/2017/02/28/517016071/trump-aims-to-eliminate-clean-water-rule.

[17] Id.

[18] Emma Sarran Webster, The Waters of the United States Rule: What You Need to Know, Teen Vogue, (Mar. 2, 2017), http://www.teenvogue.com/story/the-waters-of-the-united-states-rule-what-you-need-to-know.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s