POTUS Reviewing WOTUS?

By John McFerrin

            President Joe Biden (President of the United States, or POTUS) has directed that the Environmental Protection Agency review the Waters of the United States (or WOTUS) rule. It’s time for another round in what has been a decades long battle.

What this is all about

This all started in 1972 with the passage of the federal Clean Water Act.  That Act prohibited discharging pollution into the “waters of the United States.”  

It left undecided exactly which waters were covered.  Of course it covered big rivers, rivers like the Cuyahoga in Ohio.  Its catching on fire in 1969 was one of the things that embarrassed us into passing the Clean Water Act in the first place; it had to be covered.  Nobody disputes that rivers such as it and substantial rivers and streams are “waters of the United States.”

The trickier part comes in figuring out how far beyond major rivers and streams the jurisdiction of the Clean Water Act extended.  Big rivers are just the sum of smaller tributaries and the discharge of groundwater. The smaller tributaries are just the sum of even smaller waterways, including some that don’t run all the time (called ephemeral streams). Sixty percent of streams are dry for part of the year but then connect when it rains. Any pollution dumped into those waters could affect key ecosystems. Should they be protected?

Then there were wetlands.  Some are adjacent to major rivers; some drain to larger rivers, or even not so large streams and rivers.  Most are hydrologically connected to larger bodies of water.  What about them?  Are they “waters of the United States”?

            Since the enactment of the Clean Water Act in 1972 there have been efforts to define what waters are protected.  There have been proposed rules, comments (including some by the West Virginia Highlands Conservancy) on proposed rules, final rules, etc.  Courts have been involved, including rulings by the Supreme Court of the United States (SCOTUS, if you will).

            For a more extensive version of this history, see the January, 2019, May, 2019, and October, 2019 issues of The Highlands Voice.

What just happened

            In February, 2017, President Trump had issued an Executive Order requiring a review of the Waters of the United States rule.  This kicked off a long process which resulted in the present rule becoming final in January, 2020.

On January 20, 2021, President Biden signed an Executive Order which revoked President Trump’s Executive Order.  This will begin another long process which will probably result in changes to the Waters of the United States rule.

The rule which became final in January, 2020, was the subject of much litigation with the United States Environmental Protection Agency defending the rule.  Now that there is an indication that a new administration disagrees with the rule, the Environmental Protection Agency may quit defending the rule in court.

Note:  Normally The Highlands Voice eschews acronyms unless they are extremely well known or defined several times in the story.  Since an opportunity to have a headline with an internal rhyme doesn’t come along that often, this story is an exception.