In May of this year, the U.S. Supreme Court dealt a significant blow to the Waters of the U.S. (WOTUS) rule, which has been battered back and forth between presidential administrations for almost the last two decades. In its ruling, the court essentially told the U.S. Environmental Protection Agency that the ephemeral streams and wetlands that lack a permanent connection to continuously flowing streams and permanent lakes or ponds are no longer subject to federal regulation under the rule. This week, the EPA complied with the dictates of the court, modifying WOTUS — which is often referred to as the “Clean Water Rule” — ending protections for millions of miles of ephemeral streams and wetlands.
It’s a simple, yet incredibly important change that, thanks to the court, now puts the onus on state regulatory agencies — who have a historically abysmal record of protecting clean water within their borders — to monitor and ensure the health of these vital water bodies. These brooks, creeks, streams, springs, seeps, wetlands and other waters will continue to flow into our nation’s great rivers, but without any protection under the once radically transformative Clean Water Act.
WOTUS has been a political football for the better part of 20 years, beginning in 2005 with another Supreme Court ruling. That ruling instructed the George W. Bush administration’s EPA to clear up what actually qualified as “waters of the United States.” Those which qualified would be afforded protection under the Clean Water Act. Those that failed to, would not. Predictably, the conservative administration ruled that ephemeral creeks and wetlands which may only flow during part of the year — yet still contribute significantly to the health of the nation’s lakes, rivers, and streams — were not entitled to protection.
Ever since, the definition of WOTUS has been in flux. The Obama administration took up the rule, reestablishing protections for vital headwaters, arteries, and wetlands, recognizing their significant “nexus” with the larger streams, lakes and ponds into which they flow. Then, surprising absolutely no one, the Trump administration unwound the Obama administration’s change, leaving the part-time water-system once again unprotected. Continuing the seemingly endless back-and-forth, shortly after taking office in 2021, President Biden instructed his EPA to reverse the Trump rule, reinstating protections for ephemeral water bodies.
Anglers, perhaps better than most, know that we all live downstream. America's large rivers, lakes and reservoirs may capture more attention, but they are all the product of the waters that feed them. Put simply, what goes up must come down, and so any impacts to headwater streams, wetlands and other bodies in a watershed — ephemeral or otherwise — will naturally aggregate and coalesce downstream.
In truth, millions of miles streams and vast acreages of wetlands in the United States are ephemeral, part-time contributors to larger bodies of water (about 63 percent of wetlands or between 1.2 million and 4.9 million miles of ephemeral streams). Speaking with Hatch Magazine in 2017, Backcountry Hunters & Anglers John Gale noted that “Ninety percent of all stream miles in some states are intermittent or ephemeral. These headwaters, intermittent and ephemeral waters feed public drinking water supplies and support native trout fisheries. Moreover, 20 million acres of prairie potholes, America’s ‘duck factory,’ and other wetlands in the lower 48 states critical to migratory waterfowl production are considered isolated.”
The EPA, by complying with the court, has left the quality of millions of miles of wetlands and ephemeral streams to the whims of state environmental regulation departments, which are notoriously underfunded, undermanned, and often unmotivated. This, no doubt, is music to the ears of corporate agriculture, the fossil fuel industry, large real estate developers, and the lobbyists that represent their interests — all of which benefit greatly from and relentlessly advocate for reduced clean water protections.
Leave it to Biden’s EPA, however, to try and put lipstick on a pig.
“When Congress passed the Clean Water Act 50 years ago, it recognized that protecting our waters is essential to ensuring healthy communities and a thriving economy,” said EPA Administrator Michael S. Regan in a press release delivered after the EPA changed WOTUS to match the wishes of the Supreme Court. “Following extensive stakeholder engagement, and building on what we’ve learned from previous rules, EPA is working to deliver a durable definition of WOTUS that safeguards our nation’s waters, strengthens economic opportunity, and protects people’s health while providing greater certainty for farmers, ranchers, and landowners [emphasis added].”
The implications aren’t subtle, though some might appreciate Regan’s willingness to say the quiet part out loud. WOTUS is now significantly defanged, due in large part to efforts designed to placate monied interests which have little or no motivation to safeguard the health of the nation’s great rivers and lakes.
While the Clean Water Rule remains neutered, the Clean Water Act ceases to be what it once was: a celebrated, progressive idea, grounded in science, that, over the last 50 years, can be credited with making our nation’s great rivers and lakes — once widely polluted by raw sewage, industrial chemicals, and toxic heavy metals — swimmable, fishable and drinkable again.