Today, President Trump signed an executive order aimed at reworking Obama-era protections of clean water. The order asks for a revision of the 2015 Water of the US Act, a move likely to thrill Trump’s supporters in the fossil fuel industry and big agriculture, and confuse just about everyone else. The order doesn’t outright repeal WOTUS, it simply signals new EPA head Scott Pruitt to begin the process of revising and rewriting the law.
Essentially, the Waters of the US Act (WOTUS) brings clarity to the matter of which specific water bodies are covered by the 1972 Clean Water Act, a US federal law that regulates harmful pollution entering “waters of the United States”. While navigable rivers and lakes, and their immediate tributaries, were already protected under the Clean Water Act, the regulatory status of upstream tributaries and wetlands that feed into said waterways has long been unclear.
Under WOTUS, all tributaries that have a bed, bank and a high water mark are automatically protected, among other water bodies. The EPA estimates that WOTUS created more regulatory clarity for approximately three per cent of US waters, and that the rule would protect the drinking water of 117 million Americans, roughly a third of the population.
The WOTUS rule was intended to reduce the number of punitive suits filed against anyone intending to pollute a waterway, by making it so companies must first apply for an EPA permit to do so. Companies must also promise to stay beneath pollution thresholds set by the EPA itself. The more water bodies that are explicitly protected under the Clean Water Act, the more regulatory power the EPA has in setting the water quality standards, issuing permits and penalising companies and farmers who put drinking water and ecosystems at risk.
WOTUS has many critics, including the American Farm Bureau Federation, which argues that the rule is still unclear about which water sources require permits, and says that the rule micromanages farmers. The EPA has countered that the language of WOTUS is intended to clarify which waterways will be protected, and that the focus will remain on critical waterways, not trivial suits for ditches or puddles. Trump, while signing, said the rule did, in fact, legislate “puddles”.
Undoing EPA legislation aimed at protecting the environment is entirely in line with Trump and Pruitt’s agenda of massive deregulation. Pruitt has also taken to emphasising “federalism“, saying that the EPA shouldn’t interfere in matters best left to states. But when it comes to pollution, he’s ignoring one crucial truth: Nature doesn’t care about borders. What if a polluting company is within localised regulations in the state where polluted water begins, but not where it ends up? Cross-state pollution via waterways requires a mediating body, and if that mediating body is not going to be the EPA, it’s going to be the courts.
“There are very few states that have the regulatory apparatus, the institutions and the civil servants with the scientific and legal expertise” to handle Pruitt’s federalist approach to environmental oversight, said Danny Cullenward, a research associate at the Carnegie Institution for Science. “I think the idea that more than a small number of states would be capable of doing that is a farce.”
In addition to Big Ag, fossil fuel, timber and mining companies all spoke out against WOTUS in wake of its rollout in 2015. Massive WOTUS revision is likely to be good news for Big Oil’s pipeline projects, because companies often have to go through EPA hurdles if their pipelines crossed certain protected water bodies. (This was not true, unfortunately, of the Dakota Access Pipeline. In that case, the Sioux tribe argued that the Clean Water Act permit issued by the EPA overlooked many potential areas of impact in a rush to approve the pipeline.)
Like most environmental laws, however, repealing and revising this one will be a lengthy process that could take years. The New York Times reports full revision may even extend beyond Trump’s first (and hopefully only) term.