With one of the executive orders that have characterized the beginning of his term, President Donald Trump ordered the EPA on February 28 to begin reconsidering the Waters of the United States Rule (WOTUS), also known as the Clean Water Rule, in order to “[rescind] or [revise] the rule, as appropriate and consistent with law.”
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WOTUS has been a hot-button topic since it came into force in 2015, particularly among agricultural and farm-business groups who felt it represented unreasonable federal control over farmlands.
In a press release following the President’s order, American Soybean Association president Ron Moore celebrated the decision, saying, “Our concern with the rule has always been about the non-specific and overly broad nature of the rule as written, and never about the paramount goal of cleaner water and more environmentally sound farming practices.”
Explaining that farmers rely on clean water and soil to safeguard their crops and their livelihoods, Moore argued that they need “a seat at the table” instead of rules imposed from above.
“This rule sought to expand EPA’s authority into places where it was either unnecessary or duplicative, without any reasonable justification for doing so,” Moore said. “We look forward to collaborating with President Trump, Administrator Pruitt, and others in the administration and Congress to pursue clean water goals in a way that respects both the environment and the farmer as an environmentalist.”
What will follow, however, is unknown, as the classification of water laid down in WOTUS is now up for question. WOTUS followed on years of confusion about the applicability of the 1972 Clean Water Act, which regulated what could be allowed into the “waters of the United States,” but did not classify which waters were considered as such. WOTUS was an attempt to provide a piece of legislation that would answer all questions about which waters constituted those of the U.S. Following a puzzling split Supreme Court decision in 2006, those wetlands subject to the Clean Water Act and requiring permits for development became determined on a case-by-case basis. WOTUS was an attempt to solve that confusion by deciding which waters were covered by the Act across the board.
“WOTUS for example helped to make it clear that small streams, but not road ditches, are protected by the Clean Water Act,” explains Michigan State University’s Water Resources Education professional Monica Day. “Ditches and other drainage projects are essential for protecting property. Likewise, undisturbed small streams contribute to maintaining water quality. This clarity of the rule is important for maintaining clean water while at the same time allowing the routine maintenance needed for flood protection.”
For Day, WOTUS was about recognizing that a watershed is not only its navigable rivers and tributaries, but also its many smaller land-water contact areas. It is these that are responsible, Day says, for “providing the physical, chemical, and biological processing needed for pollution removal and groundwater recharge. For the Clean Water Act to do its job of protecting the waters of the state, i.e. ensuring waters are fishable, swimmable, and drinkable, it has to be able to protect the parts of the watershed that are essential for delivering clean water.”
Strangely, a Mother Jones report on the subject claims that the Clean Water Act and WOTUS actually exempted agriculture, and notes that a Congressional Research Service report analyzing WOTUS concluded in January that WOTUS, “makes no change to and does not affect existing statutory and regulatory exclusions: exemptions for normal farming, ranching, and silviculture activities such as plowing, seeding, and cultivation.”
A proposed change by the Obama administration that might have included farm ditches caused confusion, the story notes, but goes on to point out that proposal was withdrawn two years ago.
Scott Faber, senior vice-president, Environmental Working Group, is quoted in the story saying, “What’s so bizarre about the fight over WOTUS is that the only sector of commerce that’s clearly exempt from the rule has kicked up the most dirt about it.”
Regardless, WOTUS will now be up for review, and the gray area of which waters fall under the Clean Water Act will again expand.
“By rolling back WOTUS, the definition of which waters are protected under the clean water act goes back to being more broadly open to interpretation,” says Day. “This could lead to higher court costs for contested cases.”