Trump Navigates Ambiguous Waters


What exactly does “navigable” mean? Vague definitions of which bodies of water are protected by federal agencies have confounded policy makers for decades. In 1972, the Clean Water Act gave federal authorities the power to regulate pollution in “navigable waters.” The job of determining which of those waters the policy referred to, however, was left to the Environmental Protection Agency and the Army Corps of Engineers. Is “navigable” large enough to accommodate a boat? What about smaller streams, wetlands, or intermittent systems that feed into drinking water sources?

In 2015, the Waters of the US rule, or WOTUS, built upon the existing Clean Water Act policy by expanding the types of waterways protected by the federal government to include smaller streams that drain into major rivers, bays, and drinking water sources. But since its enactment, the rule has faced opposition by farmers, developers, the energy industry, and Republican lawmakers who argue that it places excessive restrictions on what landowners can and can’t do on their property.

Donald Trump made the Waters of the United States rule a high-profile issue during his campaign. And on February 28, he signed an executive order that directs the repeal of the WOTUS rule and its replacement with a revised policy that restricts the bodies of water that are subject to pollution regulations. Limiting the power of the Environmental Protection Agency (EPA) to enforce clean water laws will transfer increasing responsibility to individual states.

Supporters of the WOTUS rule are concerned that individual states simply don’t have the resources to ensure healthy streams and clean drinking water. “How land is managed in one state will affect what happens downstream. When we think about water management, we have to think about the entire watershed,” Durelle Scott at Virginia Tech told New Scientist. “Water runs downhill. Wherever you are in a river system, it doesn’t matter when it crosses state lines,” he explained.

The EPA, under Scott Pruitt’s direction, will have to research and propose a replacement rule that is supported by technical and legal arguments and can be proven superior to the existing policy in court. Which water systems do you believe the federal government should protect? WE_bug_web

  • Mike Mecke.

    New EPA Director Scott Pruitt’s history points to an agency and environmental disaster. Much like incoming Director of Energy Dept.’s Guv. “Goodhair” Perry, who if we are lucky, may continue to forget what govt. agency he would eliminate. But back to WOTUS, I and many others in natural resource and agricultural fields, feel that the EPA clearly overstepped common sense and their agency mission in the original rule. But, now I fear this economic driven Trump bunch may go to the other extreme and leave some crucial waterways unprotected. States such as OK and TX, among others, have not shown much ability or desire to adequately protect their water resources. Example: the fracking mess.

  • Sally Cuffin.

    This is yet another example of science denial and policy makers with limited understanding of the spaceship Earth. Waterways are essentially the blood of the planet – so when you contaminate the blood, you affect the health of the planet. A mere splinter can cause deadly blood poisoning in a human. Dumping sediment/waste/poison in those tiny streams always affects the downstream water quality (and quantity when the sediment fills dams). Sediment also affects aquatic life – making that “fishable and swimmable” portion of the law somewhat difficult to implement. As an environmental engineer/hydrologist, I repeatedly witnessed practices that had total disregard for waterways. And it’s interesting how often cleanup costs got passed on to the taxpayer (oh yeah – they want to cut that too).
    EPA didn’t actually overstep their mission, they implemented the latest science. But now that we’re in the “alternative fact” world…
    I grew up in the days before EPA and find it hard really to believe that people want to go back to when our air and water were significantly polluted. But there needs to be a significant education effort – something difficult to do in these days of the 10 second sound bite.

    • John Frehse.

      You are so right, if it is not outlandish no-one will pay any mind.

  • Congratulations, editor, you have swerved into the real problems. Ambiguous and Navigation, not Navigable. The current crop of regulators at EPA have brought the ambiguity of “navigable” to the point of the ridiculous. This is EXACTLY why POTUS brought WOTUS to a screeching halt, and not a minute too soon. God bless you Mr. Trump. His voters can not wait for removal of ambiguity from the EPA. Scott Pruitt is just the man to do that, too. I, too have spent my entire career watching the growth of over-reach in EPA. I had three job offers to join EPA in 1971. Glad I did not have to watch that from the inside.

  • Rob McCoy.

    I am all for getting rid of the ambiguity of navigable. Common sense needs to prevail here and over-reach must be curtailed. No one wants to pollute our planet on purpose. That is a tired argument. Yet, we do need some over-sight on industry and agriculture. Hopefully, Mr. Pruitt will find the balance and deliver us a win-win for all concerned.

  • Jonathan McClelland.

    It seems strange to me that it would be legal to pollute any waterway, whether navigable or not. we are ALL dependent on clean water and need to stop fouling it if we are to survive as a species. The only people with a logical argument against that fall into 4 categories: Those who profit from polluting activities, those who profit from cleaning up the mess, those who deny that pollution is ultimately harmful to society, and those wishing to still be here to experience the “biblical rapture”. It’s disappointing that this fringe coalition has seized control of our federal government.

  • Edo McGowan.

    Wow—–this is a boon to the GNP. After it is all over, the cost to put it back together will be tremendous. Vast profits will be made making the mess and yet more profits will be made fixing it. Trump promised jobs—-there you go, lots of new jobs. The SETM needs for novel technologies necessary to the fix will drive new areas of higher education, hence yet more job opportunities. It will be a cornucopia of jobs and careers. Pollution may greatly reduce life expectancy, thus saving billions in the now spent subsidies supporting the retired useless eaters. The need for clean water may also see aggressive transgressions into sovereign states, thus justifying the need for an expanded military and equipment. So as not to damage valuable infrastructure, a neutron shot to wipe out that area’s life and sterilize the area prior to our taking it might make sense. Golly, it is amazing what the term “navigable” can bring to the astute student of policy

  • Mike v..

    Regarding the CWA, and in particular the Construction General Permit, under the NPDES permit: As I have commented before, this pointless piece of regulation does absolutely nothing to address naturally occurring erosion control but instead places tremendous cost and liability on the backs of businesses which is ultimately passed on to consumers. I have had the “pleasure” to be involved in discussions with state and federal water quality enforcement officials regarding ditches that are classified as “navigable waters” and thus subject to protections of the Construction General Permit. This simple classification then triggers countless hours of inspections, reams of reporting, and unbelievable costs to protect. And for what? So that when it rains in the mountains all of the erosion just runs through the system. Take one look at the photos of the Feather River during the Oroville dam fiasco, and it’s all the evidence one needs to see to be convinced of the sham that has been pulled over all of our eyes by the radical environmental left: Stopping development at any and all costs. Hopefully, at least those of you outside of California will see some relief. I suspect that no matter what the current administration sees fit to do with the CWA and or its subtexts, those of us imprisoned here in the Golden State will be subject to even more regulation and enforcement as a nost-thumb to Trump.

  • Milan J. Michalec.

    As words mean things, I’d like to offer comments related to the words “navigable” and “diffused” and how they applied in Texas. RE: What exactly does “navigable” mean? Vague definitions of which bodies of water are protected by federal agencies have confounded policy makers for decades. In 1972, the Clean Water Act gave federal authorities the power to regulate pollution in “navigable waters.”
    It is important to note that Texas water law is deeply rooted in Mexican water law which was preceded by the laws of Spain. Within historic Spanish law, a practical definition for navigable water can be discovered.
    Las Siete Partidos, initially published in the year 1263, became Spanish law after 1348. Several titles addressed water, curiously “navigable water”. These titles provided that waters of navigable streams for certain purposes were available to be used by all persons in common.
    These purposes included “navigation, mooring of boats, making repairs on ships or sails, landing merchandise, and fishing and drying nets.” (Porter, Charles R. Jr., Spanish water, Anglo water, Texas A&M University Press, 2009).
    By Texas law, up to 200 acre feet (one acre foot is equal to 325,851 gallons) may be impounded without a permit from TCEQ. This source of water is legally described as “diffused water”—rainwater captured before it enters a stream to become the property of the state as surface water or before it enters an aquifer—the property of the landowner.
    Diffused water is also the rain that falls your roof. I am an avid proponent of rainwater harvesting. Texas water law permits unlimited capture of this resource and the Texas Water Development Board (TWDB) encourages this ancient practice as an innovative source of water in these modern times.
    Given the differing water doctrines of Texas—whether it be in the ground or on the surface, this definition means a lot to us who practice, and encourage, rainwater harvesting. The prospect of diffused water potentially falling under regulation by the EPA would interfere with a source of drinking water for many Texans, especially throughout the Hill Country.
    Clearly, President Trump’s order is good for Texas agriculture and Texans in general. Especially for those who look to the sky for their water supply—the rainwater harvesters.


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