{"id":12445,"date":"2017-02-10T09:52:30","date_gmt":"2017-02-10T14:52:30","guid":{"rendered":"https:\/\/esa.org\/esablog\/?p=12445"},"modified":"2017-02-10T09:52:30","modified_gmt":"2017-02-10T14:52:30","slug":"save-the-waters-of-the-united-states-rule","status":"publish","type":"post","link":"https:\/\/esa.org\/esablog\/2017\/02\/10\/save-the-waters-of-the-united-states-rule\/","title":{"rendered":"Save The Waters of the United States Rule"},"content":{"rendered":"

By Kenneth M. Klemow, Ph.D., professor of biology and environmental science and associate director of the Institute for Energy and Environmental Research at Wilkes University in Pennsylvania. Klemow is an ESA Fellow and a Certified Senior Ecologist. This essay was originally published\u00a0in The Huffington Post<\/a><\/span>\u00a0on\u00a0February 8, 2017.<\/h3>\n

\u00a0<\/p>\n

Wood River Wetland in Oregon. Credit, Greg Shine\/BLM <\/a>CC BY 2.0<\/a>.<\/p><\/div>\n

During his presidential campaign, Donald Trump repeatedly proclaimed that he would \u201cdrain that swamp\u201d in Washington.\u00a0 As a wetland scientist, that phrase grated on me because \u2013 if taken literally \u2013 it advocated an activity that runs afoul of regulations contained in the Federal Clean Water Act.<\/p>\n

In late October, I wrote a short Op Ed<\/a> expressing my concern for the phrase, while extolling the values of wetlands. Happily, a few newspapers in my home state of Pennsylvania picked up the piece, and published it in print and online.\u00a0 Most of the reader comments posted to the online versions were critical \u2013 stating that I was too literal, finding fault with a colorful, useful phrase.\u00a0 They argued that it is just a slogan, having nothing to do with actually draining swamps.<\/p>\n

But a section of the new White House website<\/a> proclaiming its \u201cAmerica First Energy Plan\u201d proves otherwise.\u00a0 There, the Trump administration notes: \u201cFor too long, we\u2019ve been held back by burdensome regulations on our energy industry. President Trump is committed to eliminating harmful and unnecessary policies such as the Climate Action Plan and the Waters of the U.S. rule.\u201d<\/p>\n

Casting aside the part about the Climate Action Plan, the \u201cWaters of the U.S. Rule\u201d is worth examining \u2013 and asking whether it really represents a \u201cburdensome regulation.\u201d\u00a0 I argue that it does not.<\/p>\n

The Environmental Protection Agency and the US Army Corps of Engineers finalized<\/a> the Waters of the United States (WOTUS) Rule in late May 2015.\u00a0 Its purpose was to clearly define which areas qualified as Waters of the United States, and thus worthy of receiving protection under the Federal Clean Water Act of 1972<\/a>.<\/p>\n

Enacted during the Nixon administration, the Clean Water Act protects navigable waterways such as rivers and lakes from water pollution.\u00a0 But to do so, Congress wisely included protections for tributary streams and their adjoining wetlands. Such wetlands benefit people living downstream by preventing flooding, restoring groundwater, removing pollution, and providing habitat for fish and wildlife.\u00a0 Further, about 117 million Americans get their drinking water from streams protected by the Clean Water Act.<\/p>\n

Since the late 1970s, the Corps regulates wetlands, streams, ponds, and other water features on both private and public lands.\u00a0 Landowners with such features on their property have to obtain a permit<\/a> from the Corps whenever they want to develop those areas.\u00a0 Such restrictions rankle many developers, and the government has been repeatedly sued over the law.<\/p>\n

Supreme Court decisions in 2001<\/a> and 2006<\/a> mandated the Corps to prove that a particular wetland, stream or pond clearly benefitted a downstream navigable waterway: a time-consuming and costly procedure considering the thousands of regulated wetlands and watercourses in the U.S.<\/p>\n

To streamline the process of identifying Waters of the United States (WOTUS) on parcels of land, the EPA and Corps jointly developed a set of rules that defined regulated bodies of water within the U.S. \u00a0They produced an initial document based on scientific expertise and research. Public review followed, garnering over one million comments. In addition, they conducted more than 400 meetings with multiple stakeholders nationwide.<\/p>\n

Significantly, the WOTUS rule declared that tributary streams and adjoining wetlands had sufficient connections to downstream rivers and lakes to be automatically declared Waters of the United States.\u00a0 Thus, further assessment by the Corps or the EPA would not be needed.\u00a0 Property-owners and developers would therefore benefit by more quickly knowing whether they need to file a permit application.<\/p>\n

As written, the rule actually reduced<\/em> the acreage declared to be Waters of the United States by eliminating drainage ditches and other landscape features that flow only after rainfall or snowmelt.\u00a0 Similarly, the regulations also excluded areas used for agriculture, forestry, and ranching.<\/p>\n

Following their publication in the Federal Register in August 2015, the WOTUS rules were quickly challenged in the courts.\u00a0 Hours before the rules were to take effect, a North Dakota judge imposed a stay<\/a> that affected 13 midwestern states.<\/p>\n

Since then, many Republicans, nearly thirty states, and a range of business interests attacked the law, claiming that it represented a major overreach of federal power \u2013 despite the fact that the law was designed to merely clarify existing Corps and EPA practice.<\/p>\n

In May 2016, the US Supreme Court ruled that wetland determinations by the Corps<\/a> are reviewable by courts \u2013 and are not automatically binding, as suggested by WOTUS. \u00a0In his decision, Justice Anthony Kennedy wrote that the Clean Water Act \u201ccontinues to raise troubling questions regarding the Government\u2019s power to cast doubt on the full use and enjoyment of private property throughout the Nation.\u201d \u00a0While sweet words to developers, that viewpoint fails to recognize the benefit of the Act, enhancing water quality nationwide.<\/p>\n

Prospects for the WOTUS rule will dim considerably if the Trump Administration follows through with its pledge articulated on the White House website. \u00a0Ominously, Oklahoma Attorney General Scott Pruitt (R), who has been tapped to lead EPA, has sued the agency over the WOTUS rule<\/a> and has promised to withdraw it if confirmed.\u00a0 But repealing the rule cannot be done by Executive Order; it will require extensive public hearing based on evidence<\/a>.<\/p>\n

Opponents of the WOTUS rule fail to appreciate that removing the regulation would again force the Corps to perform laborious and costly case-by-case analyses of each wetland\u2019s connections to downstream water conditions. They also overlook the role that wetlands and tributary streams play in helping to protect the quality and hydrology of navigable waters, which is the clear intent of the Clean Water Act.<\/p>\n

But the rule has its supporters.\u00a0 Anglers are concerned<\/a> about the loss of prized fisheries habitat should stream protections disappear.\u00a0 A brewery in North Carolina<\/a> joined a lawsuit asking the Sixth Circuit Court of Appeals to uphold the clean water rule \u2013 one of several that are pending.\u00a0 The National Wildlife Federation<\/a> and grassroots organizations like the Citizens Campaign for the Environment<\/a> are waging campaigns to support the rule.<\/p>\n

Unlike the Obama-era Clean Streams Law that Congress quickly overturned<\/a> in early February, the WOTUS rule will be much more fully litigated.\u00a0 If saner minds prevail and the rule is allowed to be implemented, we will have a streamlined and clearer definition of areas that qualify as Waters of the U.S.\u00a0 Developers, other businesses, and municipalities would benefit from that clarity.\u00a0 Far from being an overreach, it is a scientifically defensible approach to keeping navigable waters clean.<\/p>\n

For the sake of America\u2019s vital waterways, neither the President nor Congress should gut the Waters of the United States Rule.\u00a0 Clean water, protection against flooding, and recreational opportunities are all part of what makes America great.\u00a0 For that reason, I urge you speak out to help save the WOTUS rule.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Kenneth M. Klemow, Ph.D., professor of biology and environmental science and associate director of the Institute for Energy and Environmental Research at Wilkes University in Pennsylvania. Klemow is an ESA Fellow and a Certified Senior Ecologist. This essay was originally published\u00a0in The Huffington Post\u00a0on\u00a0February 8, 2017. \u00a0 During his presidential campaign, Donald Trump repeatedly proclaimed that he would \u201cdrain…<\/p>\n","protected":false},"author":49,"featured_media":12448,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[85],"tags":[],"class_list":["post-12445","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-guest-posts"],"_links":{"self":[{"href":"https:\/\/esa.org\/esablog\/wp-json\/wp\/v2\/posts\/12445","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/esa.org\/esablog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/esa.org\/esablog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/esa.org\/esablog\/wp-json\/wp\/v2\/users\/49"}],"replies":[{"embeddable":true,"href":"https:\/\/esa.org\/esablog\/wp-json\/wp\/v2\/comments?post=12445"}],"version-history":[{"count":0,"href":"https:\/\/esa.org\/esablog\/wp-json\/wp\/v2\/posts\/12445\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/esa.org\/esablog\/wp-json\/wp\/v2\/media\/12448"}],"wp:attachment":[{"href":"https:\/\/esa.org\/esablog\/wp-json\/wp\/v2\/media?parent=12445"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/esa.org\/esablog\/wp-json\/wp\/v2\/categories?post=12445"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/esa.org\/esablog\/wp-json\/wp\/v2\/tags?post=12445"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}