The Trump Administration’s redefinition of protected waters is reheating the battle over protected waters and state’s rights versus federal rights. This was expected as the debate has been ongoing since the enactment of the Clean Water Act of 1972, and President Donald Trump made throwing out the rule part of his campaign platform.

The Clean Water Act was enacted to protect the uses of and eliminate discharges of toxic pollutants to lakes and rivers. However, the scope of the law was vague and different federal administrations and different states have interpreted it in different ways. Some believed that the provisions of the law covered every water body including all wetlands, ponds and small ditches. Other administrations interpreted the protection to cover only large wetlands, streams and lakes.

Sorting out which waterbodies are protected under the CWA eventually was given to the U.S. Supreme Court. In 2006 the court failed to reach an agreement and issued an opinion that the Clean Water Act’s protection should apply only to waters with a “significant nexus” to navigable waters.

In 2015 the U.S. Environmental Protection Agency issued the Waters of United States rule to define which water bodies would be regulated by the federal government. It clarified for all that Clean Water Act protection covers small wetlands and streams that are dry most of the time. WOTUS was meant to limit pollution in the nation’s rivers, lakes, streams, and wetlands by expanding federal jurisdiction over tributaries.

Redefining protected waters has various pros and cons. One benefit, for the first time in history, there would be a clear definition of the difference between federally protected waterways and state protected waterways. On the other hand, nationwide, over half of wetlands would lose protection, and in Texas, the 80 percent of stream miles that dry up at least part of the year would lose protection.

The Clean Water Act is widely regarded as the most successful environmental legislation in U.S. history, and removing water protections could be very short-sighted and dangerous to places like the Houston area which are subject to tropical storms and hurricanes. If you’d like to know more about protected waters and how the proposition for a new definition affects you, contact us today.