The definition of “Waters of the U.S.” (WOTUS) is changing again thanks to a new ruling by the U.S. Supreme Court. It could put half of the nation’s wetlands in peril and that could significantly affect flooding.
The Ping-Pong Match over Wetland Protection
I first started covering the definition of WOTUS in January of this year in a story about Biden’s changes to Trump’s changes to Obama’s changes.
The WOTUS definition defines the areas subject to EPA clean water regulations. At issue: How far up in the branching structure of a river may the government enforce regulations? As far as it’s navigable? One level up from that? Two? Three? Infinitely?
Clarity is a good thing. But the last time I looked up WOTUS, the definition stretched for more than 100-pages. It has changed numerous times since 2015. And different government agencies follow different definitions. Complexity, change, ambiguity and conflict now give bureaucrats and developers almost unlimited power to interpret definitions as they see fit.
Local Example of Damage
For instance, when the developers of Woodridge Village clearcut their property, filled in wetlands and sent tons of sludge down Taylor Gully into Lake Houston, the question became “Were they acting legally?” The developer found no wetlands on their property even though wetlands were clearly indicated on the USGS National Wetlands Inventory.
Complaints piled into the EPA and Army Corps of Engineers. The Corps found that, even though the property contained wetlands, the wetlands lay outside the jurisdiction of the Corps to regulate.
The Trump-era definition, finalized in 2020, was long sought by developers who complained about federal overreach. They said the WOTUS definition stretched into gullies, creeks and wetlands on private property.
But Biden reversed the Trump definition and now the US Supreme Court has reversed the Biden definition. That makes the fourth time the rules have been reversed since 2015. Worse, the EPA and Corps use overlapping, but different rules.
And as far as I can tell, the limit of regulation does not vary with the magnitude of violation, a serious flaw in my opinion.
NYT Article Puts Most Recent Changes in Perspective
A New York Times essay by Jim Murphy of the National Wildlife Federation summarized the most recent changes. Says Murphy, “The Environmental Protection Agency has long interpreted the Clean Water Act as protecting most of the nation’s wetlands from pollution. But now the court has significantly limited the reach of the law…”
The Court’s new definition hinges on the wetlands having “a continuous surface connection” to bodies of water such as streams, rivers, lakes and oceans. At least half of the nation’s wetlands could lose protection under this ruling, which provides an even narrower definition of “protected waters” than the Trump administration had sought, according to Murphy.
Congress has long failed to clarify language in the Clean Water Act that caused confusion among judges and put the law in the Supreme Court’s cross hairs.
Wetlands are nature’s sponges. They act as natural detention basins that hold back stormwaters and that has a direct impact on flooding.
Justice Brett Kavanaugh, who filed a concurring opinion in the judgment, acknowledged its impact, writing that it would have “significant repercussions for water quality and flood control throughout the United States.”
How Revised Definition Could Affect Local Development
Need an example. Look no further than the Colony Ridge development in Liberty County, where the developer is filling in and paving over wetlands…some immediately adjacent to wetland mitigation banks.
I hope Congress can finally find a workable definition of WOTUS that protects public safety while allowing responsible development. The constantly changing definitions of WOTUS help no one.
Posted by Bob Rehak on 5/31/23
2101 Days since Hurricane Harvey
The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.