The "Waters of the United States" Rule is Becoming Murky Again

The EPA and Army Corps of Engineers has finally--at long last--issued the notice we've been waiting for: the repeal and replace notice for the "Waters of the United States" (WOTUS, (whoa'-tuss) colloquially) rule. This oddly-reviled Obama-era rule has been under attack from the very moment that it was proposed, and this latest salvo was expected. Combined with questions about the way that the Army Corps is involved in the allocation and management of water, the current rulemaking underway signals a profound shift in the way that the Federal Government manages water in the United States.

But despite its publicity, the WOTUS rule rollback will have less impact than most people think--or at least less impact than they want. After the passage of the Clean Water Act, whose statutory language provides broad authority to the EPA to regulate, a series of Supreme Court cases created an ad hoc system based on whether a water has a "significant nexus" to a navigable water. This jurisdictional standard has been litigated case-by-case since its articulation in 2006, creating uncertainty for everyone from citizens to developers, manufacturers and farmers (individual states are also free to regulate waters beyond that, as is their wont, which will not change). Also, the true impact of the rule was never felt, as litigation kept the rule from taking full effect.

The WOTUS rule was created to respond to calls for certainty in regulation (see our interview with Former EPA Water chief, Ken Kopocis, in our most recent H to O). After all, if you have money on the line in a big project, you want to know if that pool or stream that you might affect is subject to federal standards. The uncertainty caused by the well-meaning Supreme Court decisions might cost you investors, time and money; it will complicate every aspect of your planning and impact your business. WOTUS was designed to create certainty and to solidify those costs and impacts for businesses and many others.

Federal regulation of water is not going to end. The standards set through the Clean Water Act and the Safe Drinking Water Act have ensured that most Americans can turn on their tap and expect clean water to drink. The largest failures pre- and post-CWA/SDWA have come at the hands of individual states that chose to pit financial stability, economic growth and political expediency against water. But water drives financial stability, economic growth and political strength. With clean water comes a healthier and more vibrant workforce, economic growth, fewer costs for States on health-related issues. The nexuses and interconnections between our lives and water are almost too numerous to count. The interstate nature of water means that water must be something we work together on as a nation. Parochialism leads to situations like Flint, the Cuyahoga River Fire, and worse.

The WOTUS rule added greater value to the strictures of the Clean Water Act, finally detailing how it works and considering how smaller waters impact bigger waters. Water is all connected; when you dump sewage or chemicals into a small stream in your backyard, that stream flows into a river, which flows through other backyards and into drinking water systems and into wetlands (which protect against flooding), and into tributaries where people swim. Even if you dump sewage into a puddle on your own property, that could be absorbed into the land, into the underground aquifers that feed springs in lakes, which flow into rivers, and on and on. "Navigable waters" are just a subset of the waters that run our lives. To focus on waters large enough to drive a boat ignores all the other waters we rely on across the country for wells, for irrigation canals and for survival. The thousands of unnavigable streams that feed into those navigable waters, that are unregulated unless that "significant nexus" can be shown turns into a "death by 1000 cuts." Small impacts, when added together, lead to big problems.

And the WOTUS rule only took on a small part of this problem, saying that the government--under the wording of the law--had jurisdiction to regulate not just the disease--the big problems--but the symptoms as well--the small impacts. WOTUS looked at water as something that exists for the benefit of every person in this country, as a big picture problem. This was no different than the system before, the one driven by the Supreme Court decision. When there is a significant nexus between a small impact and a big problem area, the EPA can still regulate. But without a rule like WOTUS, that process becomes more expensive, more uncertain and much slower. When it comes to the water we need to survive, those are costs, questions and time we really cannot afford.