This blog is the fifth in a six-part series. Here are the first, second, third, and fourth parts.

Waters of the United States (WOTUS) are bodies of water protected by the Clean Water Act. In 2015, the Clean Water Rule was established to clarify the definition of what constitutes a protected water under the Act. This distinction has been an ongoing point of discussion, often accompanied by contention, for some time. Since waters protected by the Clean Water Act are covered by several layers of regulation and permitting, WOTUS can slow down or prevent unregulated pollution associated with development projects. Although the health of the environment and communities benefit from these protections, parties with financial, legal, or other interests may consider it worthwhile to challenge the Clean Water Rule, in order to weaken protections for WOTUS. In doing so, development and growth projects could potentially move along faster or at a lower economic cost, at the expense of long term safety and environmental protection.

The Dirty Water Rule

Following the 2015 Clean Water Rule, there was renewed interest in revoking its strengthened protections for water. Those who were in opposition to the Clean Water Rule dedicated much time, effort, and money to seeing the 2015 rule reversed. By 2020, they had succeeded. The so-called Dirty Water Rule in 2020 rolled back protections for WOTUS, such as removing protections for bodies of water that depend on precipitation. This change made it easier for developers, large-scale industrial agriculture, manufacturing plants, and others to grow their production quota without concern for protecting the water resources that they, too, relied on. The short term gains of the Dirty Water Rule would quickly be overrun by the long term costs to the broader human and nonhuman communities.

The Dirty Water Rule was successfully challenged in the courts and in 2022, the Biden administration moved to formally repeal and replace it with a new regulation that restores protections for waters that were in place prior to the 2015 Clean Water Rule. Perhaps unsurprisingly, the revision of the rule was met with contention.

On February 8, 2023, Republicans from the House Committee on Transportation and Infrastructure challenged the Biden Administration’s revised WOTUS rule. The Chairman of this committee, representative Sam Graves — a Republican from Missouri — called the Biden Administration’s rule a “massive overreach of regulatory abuse.” His position was supported by a diverse group of real estate interested parties, industrial agricultural interested parties, and others. However, the challengers to Chairman Graves’ position included science-based thought parties, non-governmental organization interested parties, supporters of a healthy environment, and more. Ultimately the line of questioning and discussions during that February hearing continued with no clear decision by the end of the meeting.

We need a consistent rule for Waters of the U.S.

Developing a strong, consistent, and clear WOTUS rule would help it stand the test of time. By taking a holistic approach to development of a lasting WOTUS rule, factors such as economy, community, and environment could all be taken into account. Rather than dividing seemingly opposing sectors, they could come together to support sustainable development where possible, and prioritize environmental justice and conservation. By allowing equitable access to environmental resources to lead, other considerations can follow without continuing marginalization and damaging pollution. It is high time to make a decision on clean water. A meaningful, protective, and science-based WOTUS rule that considers a broad range of factors can support clean water and equitable access to it for all.