Changes to the Waters of the U.S. rule finalized in 2019 were based on misleading information touted by special interests and are a clear and present danger to the health and safety of Americans. The implementation of these rule changes is ongoing and generates a multidimensional issue because the intent is to gut WOTUS and in effect the entire Clean Water Act.
Let me be clear: I am biased toward clean water, and anyone who imbibes water should be interested in clean water. That said, I am old enough to remember when our lakes, streams and rivers were so polluted with domestic and industrial wastes that some of them caught fire. In other instances, water was deemed unsafe for human body contact or consumption. Today, thanks in large part to the implementation of the Clean Water Act, most of our lakes, streams and rivers have changed from flammable to fishable.
The WOTUS rule implemented by the Obama administration was a response to numerous lawsuits against the Environmental Protection Agency by a diverse group of organizations to force it to implement and enforce regulations to achieve the stated goal of the Clean Water Act that all waters of the United States be fishable and swimmable by 1986. While Clean Water Act rules and regulations have restored roughly 60% of our waters to a fishable and swimmable status, 40% are still seriously impaired (polluted).
In past practice, the EPA and the U.S. Army Corps of Engineers did not enforce the Clean Water Act on bodies of water that were not clearly defined in the act. In other words, the agencies buckled to influence and pressure from special interest groups such as corporate agriculture, land developers and industries that discharge wastewater.
The Obama WOTUS rule was an attempt to provide the EPA and the U.S. Army Corps of Engineers with guidance to clarify the definition of Waters of the United States. This “new” guidance was aimed mostly at waters that form the headwaters of streams and rivers. Many of these bodies of water are ephemeral streams and temporary wetlands. The guidance included in the Obama version of the WOTUS rule was a reasonable scientific approach to identifying these waters.
What WOTUS did not do was provide EPA or the Corps of Engineers with any additional authority to regulate private property and the waters on that property. The Clean Water Act does not regulate private property and won’t under WOTUS. In fact, the definitions make it easier for regulated entities to decide if they need permits for activities they might need to conduct in and adjacent to waterways.
The 2019 changes to WOTUS by the Trump administration only made things worse and crippled the Clean Water Act protections. These changes are a 40-year leap backward for our nation’s waters. Of particular concern is removal of regulations on wastewater and stormwater discharges to groundwater, ephemeral streams and wetlands that will be lethally damaging to water quality.
Stormwater runoff is one of the largest threats to water quality and contributes to hazardous algal blooms and to the so called dead zone in the Gulf of Mexico. The new WOTUS rule has the potential to return the country to a time when rivers were on fire and many of our waterways were characterized as “open sewers.”
The past 40 years of experience with Clean Water Act implementation provide some important lessons:
• It is always cheaper to prevent water pollution than it is to clean it up.
• Individual states are either unwilling or unable to protect water resources, which is why we have a federal Clean Water Act. The real purpose of the Clean Water Act is to protect human health and welfare from the abuses of corporate greed. The premise is that no individual, corporation or unit of government has a constitutional right to profit at the expense of the health and welfare of the people. Water connects us all, and those who pollute water affect us all.
Hundreds of billions of dollars have been expended over the past 40 years to attain about 60% of the 1972 goals of the Clean Water Act. If we are to avoid a complete loss of that investment, the newly minted Biden-Harris administration must make the revitalization of the Clean Water Act a high priority during its first year in office. Lack of a strong Clean Water Act to ensure compliance with standards and to measure pollution effects on water quality amounts to a cynical giveaway of federal funds to polluting industries.
Joe Pitts of Ozark is a retired environmental specialist. He is also the retired director of the James River Basin Partnership.