President-elect Donald Trump has promised repeatedly to get rid of WOTUS — a rule that the EPA says is crucial to keeping pollution out of America’s waterways. And if WOTUS’ future wasn’t already uncertain, Trump has enlisted one of the rule’s greatest detractors to head the EPA. “What is this all about?” Scott Pruitt says in a Facebook video he posted last year about the Waters of the U.S. rule. “It’s about power. It’s about the EPA trying to assert itself in decision making that is exclusively the providence [sic] of the states, of the private property owners.”
While WOTUS has been the subject of much rancor, there is a lot of confusion about what it really means. According to the EPA, which jointly developed the rule with the U.S. Army Corps of Engineers, WOTUS restores the original protections to wetlands and tributaries that the Clean Water Act first guaranteed when it was passed in 1972. The act was designed to regulate pollutants and discharges in waterways and drinking water sources just years after incidents, like the Cuyahoga River in Cleveland catching fire, gained national attention.
More than one third of the U.S. population, 117 million people, rely at least in part on drinking water from sources the rule is designed to protect, says EPA.
With WOTUS, tributaries, such as creeks and streams, that flow into larger “navigable waters” can’t be polluted without a federal permit. Likewise, bodies of water within a 100-year floodplain or closer than 4,000 feet of a protected waterway are also covered by the regulation. Gina McCarthy, current administrator of the EPA, has said that the new rule only increases federal reach by 3 percent, but opponents doubt her math.
As state attorney general of Oklahoma, EPA nominee Pruitt sued the federal government along with several other states as soon as WOTUS was finalized August 2015, warning that under the rule “farmers, ranchers, developers, industry and property owners will now be subject to the unpredictable, unsound and often byzantine regulatory regime of the EPA.”
To date, nearly 30 states have filed lawsuits against the law, which in theory tries to clarify which bodies of water are covered under the Clean Water Act. Two Supreme Court cases in 2001 and 2006 made it unclear exactly how far upstream protections extended, ruling that a body of water needed to have a “significant nexus” to a navigable waterway in order to qualify. Exactly what counts as “significant” has been the source of fiery debate ever since.
Numerous agribusiness companies and groups, including Tyson Farms, Perdue, the American Farm Bureau Federation and The Dairy Farmers of America, have come out against WOTUS, says Politico. The rule is currently sitting in the Sixth Circuit U.S. Court of Appeals in Cincinnati, on hold until all the litigation against it can be reviewed.
As if expecting a fight, the EPA makes clear on its website that it tried to leave agriculture well enough alone. The agency explains in a factsheet that the rule “does not create any new permitting requirements for agriculture and maintains all previous exemptions and exclusions. It does not regulate most ditches and does not regulate groundwater, shallow subsurface flows or tile drains. It does not make changes to current policies on irrigation or water transfers or apply to erosion in a field.”
But Don Parrish, senior director of regulatory relations at the American Farm Bureau, calls the EPA’s claims disingenuous. “When you look at the specifics, what’s written in the details of this rule, we find it to be extremely expansive,” says Parrish, who argues that farmers could be fined for not getting a permit for a puddle on their land. (The EPA has said puddles are exempt.)
According to the EPA, in order for a tributary to qualify for federal protection, it has to have a bed, bank and ordinary high-water mark. But for Parrish, those standards are dangerously vague. He fears that the rule is actually meant to put the EPA in the business of regulating land-use, not just water-use, by forcing farmers to apply for permits to fertilize their crops or spray pesticides if they want to do so close to a protected body of water.
“To say that someone is opposed to the protection of water just because they don’t support this rule would be a gross mischaracterization,” says Parrish. The Farm Bureau would like to see states and local water authorities have more of a say in water quality regulation.
Jon Devine, senior attorney for NRDC’s Water Program, writes that in 2006, when the Clean Water Act was last in front of the Supreme Court, more than 30 states claimed that small streams and wetlands warranted federal protection. They said it was too much of a financial and administrative burden to ask states to be responsible.
“It remains a mystery to me why agribusiness has fought these protections as aggressively as they have,” says Devine. “Agriculture is probably the least regulated industry under the Clean Water Act. And that’s because quite aside from what kinds of things are considered water to be protected by the law, a raft of discharges are exempt from permitting.”
Even if a farmer needed a permit, getting one isn’t exactly hard, says Devine. The U.S. Corps of Engineers authorized 57,000 permits in fiscal year 2015, most of which were fast-track permits for activities that were considered to be minimally destructive.
Mark Fix, a cattle rancher in Montana, agrees that much of the talk about WOTUS and farming is fear-based. “I don’t think there is any truth to the idea that WOTUS will put farmers out of business,” says Fix, who spent years fighting the coal industry after a company dumped salt-heavy water into streams that fed into his main irrigation source – the Tongue River. In other words, the company was polluting the same kinds of tributaries that WOTUS aims to protect.
Trump promised during his campaign that he would level WOTUS, but to actually pull the rule apart would require going through the same time-consuming regulatory process it took to put it together, namely a public notice, a comment period and then an analysis of that comment. The agencies received more than a million comments on WOTUS, 87 percent of which were in support, a fact that suggests it will be hard for the next administration strike down the WOTUS regulation outright.
It would also take time for all those lawsuits before the Sixth Circuit court to wind their way to conclusion. In the meantime, as head of the EPA, Pruitt could still choose to not enforce the rule. “But that would still be better than the status quo,” says Devine. “For one thing citizens could still enforce it and it would still be on the books” for future administrations to exercise more aggressively.