鈥淜eep navigable waters clean.鈥 It sounds straightforward, but in practice it鈥檚 anything but. For decades, the Environmental Protection Agency has struggled with that task, after the Clean Water Act in 1972 gave them the authority to regulate 鈥渘avigable waters.鈥 But 鈥渘avigable鈥 doesn鈥檛 cover small streams and wetlands, and water in those areas has a habit of flowing downhill into other, larger bodies of water. Whether the EPA could regulate all that water before it reached someplace navigable was never clear.
So in 2015 the Obama administration finalized the Clean Water Rule, nicknamed the Waters of the United States rule or WOTUS, in the hopes of creating a functional definition to guide the EPA鈥檚 work. The agency says that before the rule, of streams and wetlands in the country. Even with that restriction, the Clean Water Act has been quite successful, cleaning up rivers like the infamous 鈥淩iver that Caught Fire鈥 Cuyahoga in Ohio from decades of urban and industrial pollution. In total, WOTUS placed solidly under EPA jurisdiction鈥攖hat鈥檚 about a third of the country鈥檚 population.
But President Trump sees the rule as over-regulation, and yesterday that could spark its eventual demise. Nothing will change now that the executive order is signed鈥擶OTUS cannot be overturned with a hastily scrawled signature鈥攂ut the action is certainly a statement about the administration鈥檚 goals. 鈥淚 don鈥檛 think this is going to be an easy exercise for them, but it鈥檚 clearly a priority,鈥 says Karen Hyun, Director of Water and Coastal Policy for 探花精选.
First, let鈥檚 take a step back鈥攚hat does that WOTUS acronym actually mean? , which takes up 74 pages of small print, doesn鈥檛 create any new regulations. Instead, it clarifies what types of water to which the regulations within the Clean Water Act apply, based on two words in a Supreme Court decision and a whole lot of science.
Here鈥檚 where the in a 2006 decision: Four justices believed the EPA was entitled to regulate any places where water flows at any point in the year; four justices subscribed to a much narrower definition, strictly navigable waters ( calls for adherence to this second standard). Stalemate, basically.
The last justice, Anthony Kennedy, tipped the scales to the second group to require new rules鈥攂ut he didn鈥檛 sign on to limiting the EPA鈥檚 authority just to navigable waters. Instead, he called for the rules to cover any wetlands with a 鈥渟ignificant nexus鈥 to those navigable waters鈥攊n other words, any wetlands that genuinely affect the waters the EPA has jurisdiction to protect. And more details in the opinion made it unclear whether he intended the same standard to hold for streams, .
The 2015 WOTUS rule was the Obama administration鈥檚 response to this call to decide the issue. The EPA translated Kennedy鈥檚 call for 鈥渟ignificant nexus鈥 into something that could be determined empirically, and then produced a 400-page document delving into how a range of different water features affect rivers. Authors of that document name-checked 鈥渟ignificant nexus鈥 391 times in those 400 pages, which may make the Supreme Court less likely to oppose the rule, should litigation get that far.
Many of the water features the EPA addressed in this scientific review also happen to be crucially important for birds鈥攏ot just wetlands, which are hotspots for bird life and filter and feed our drinking water sources, but also intermittent streams that eventually end up in major waterways and that are the basis of the country鈥檚 鈥.鈥 Millions of waterbirds come to the northern midwest to take advantage of the buffet available at the potholes, says Alison Holloran, executive director of 探花精选 Rockies. 鈥淚f you [destroy those waters], it doesn鈥檛 matter what they鈥檙e doing on their wintering grounds,鈥 she says of birds like Blue-winged Teals and Canvasbacks. 鈥淚f they don鈥檛 have [clean water], we鈥檙e not going to have them, period.鈥
The EPA under the Obama Administration argued that the rule makes life easier for businesses, since clearer definitions would give them a better shot of understanding the regulatory issues involved. It also left the rules entirely unchanged for agriculture, . President Trump disagrees; calls for a policy that balances keeping pollution out of navigable waters with 鈥減romoting economic growth鈥 and 鈥渕inimizing regulatory uncertainty.鈥
Just like the Supreme Court鈥檚 2006 ruling, the guidance in the executive order isn鈥檛 crystal clear. In particular, it seems to overlook industries that are based on a healthy environment, like recreation and hunting, Hyun says. And introducing competing rules doesn鈥檛 clarify regulations for businesses. 鈥淚t鈥檚 hard to build a project not knowing which rule is in place, especially when they鈥檙e so different,鈥 she says.
That鈥檚 part of why Bradley Cornell, who handles policy in southwest Florida for 探花精选 Florida, is so frustrated by the order. 鈥淸WOTUS] was a really reasonable clarification,鈥 he says. 鈥淲e were going to get clarity and it was snatched away from us.鈥 In his neighborhood, he鈥檚 particularly worried about what that means for Wood Storks, which rely on the plentiful food they can find in shallow, seasonal wetlands鈥攖he kind of place that鈥檚 a particularly easy target for development and its associated pollution without the WOTUS clarification. The Wood Storks are nesting this year because last year was so rainy, but 鈥渋n normal years when we should see nesting, they don鈥檛 nest any more,鈥 he says.
It鈥檚 important to note that an executive order appears immediate, but it鈥檚 actually far from it鈥擳rump is just triggering what will be a very long process. The WOTUS rule was finalized too long ago for Congress to kill it quickly, .
Instead, the EPA and its new administrator, Scott Pruitt, need to go through the standard rule-making process, including a public comment period. , that could take more time than Trump has left in his first term. Even once a rule is finalized, it鈥檚 almost certain someone will sue over it, just as others have sued over WOTUS itself (that鈥檚 why the rule hasn鈥檛 actually gone into effect yet).
The continuing ambiguity means it鈥檚 hard to know exactly what changes will come about, or when they鈥檒l begin. But the Trump administration鈥檚 intent is clear: to reverse Obama-era environmental protections no matter what, even if they have been effective at protecting avian and human life.