Redefining Water

The author wades through the murky politics that determine which waters of the United States are worth protecting and why the fight must continue.

My first memory is of water. Sitting bare-bummed in our backyard, inside Daisy-the-dog’s big blue water bowl. I am splashing. I must’ve crawled in there, or been placed there as a joke—dog saliva and hose water a solution to the hot swelter of California’s summer suns. 

I was raised to think about water. Me: born on a clear night a few miles from the Pacific Ocean, delivered straight into the tail-end of a Golden State megadrought. If Sonoma Valley of the 90s was dry golden grass and not-flushing the toilet after every pee, I was a frizzy ponytail with endless why-this, why-that kid questions—born thirsty, for knowledge, for change.

Which is why, perhaps, my ears pricked up earlier this spring, when I heard the voice of Andrew Wheeler, the head of the Environmental Protection Agency (EPA), bragging on the radio, boasting about how effective the EPA has been at deregulation—the process of removing rules, I thought, how paradoxical: a federal agency sworn to protect, now proud of abandon, of rolling back the covers, of leaving environments more exposed than before. 

That day on the radio in April, Wheeler was talking specifically about water. He confirmed that the EPA, in conjunction with the Army Corps of Engineers, had finalized a new definition for “waters of the United States” (WOTUS) as it relates to the nation’s Clean Water Act—the primary federal law that governs water pollution in the U.S. For three years, the agencies had chipped away at a new definition, trimming and reducing its scope so that national pollution-regulating rules would apply to fewer streams, wetlands, ground waters, and headwaters. 

It was a redefinitioning project on which President Trump had campaigned. In exchange for support from the agriculture, natural resources, manufacturing, automobile, and real estate development industries, he had promised fewer rules, cheaper policies, and faster procedures when it came to land use around the country. Within the first month of taking office, Trump followed through: He signed an executive order demanding the EPA review WOTUS, and while it took more than three years of political maneuvering, here Wheeler was, on the eve of Earth Day 2020, finally announcing the agencies’ success. Beginning on June 22, a new definition of “waters of the U.S.” will take effect, one that now excludes thousands of miles of streams throughout Western states. 

My ears rang. How can a water molecule—stoic and stable as time itself—be deemed worthy of protection from pollution in one place or in one form, but not in another? My mind churned. Doesn’t it all come back together in the end?

The Debate

My childhood springs were spent catching tadpoles in the creek, watching over our neighborhood nopales and sunflowers as summers bloomed. Our valley was a mix of cow pastures and vineyards, and in the fall, when some of the creeks dried up, I’d explore the irrigation tunnels that wound under the streets, largely unaware of the intricate web of water transportation criss-crossing throughout the West.

I eventually moved to Colorado to spend even more time outdoors, recreating in the Rocky Mountain rivers and snow. Water as a precious commodity is just as obvious here as it was in Sonoma, with recurring educational campaigns and interstate agencies at play. Tunnels underneath the Continental Divide divert and transport water to people across the state. Two thirds of what water flows through Colorado is contracted to other states, including California. While I grew up at the end of the West’s water system, I now live at the beginning.

When I first moved to Colorado, I didn’t know much about the Clean Water Act, how it protects “waters of the U.S.” from various forms of industrial, agricultural, and municipal pollution—like fertilizers, pesticides, sewage, and mineral leaks. The CWA provides rules for developers and farmers, requiring permits for certain types of work in proximity to protected waterways, and it outlines regulations on how to dispose of pollutants.

While it’s always been clear that the scope of WOTUS includes navigable waters (those big enough for boats, like the Mississippi River, Lake Powell, or various coastal inlets and bays) in addition to their obvious tributaries—it’s never been perfectly clear which smaller streams and more amorphous water bodies, like wetlands and ephemeral creeks, also fall under the designation of WOTUS, and therefore under the protection of the CWA. Since 1972, when the CWA became one of our country’s first major environmental laws, WOTUS has been a matter of political debate.

In the early 2000s, a series of contested Supreme Court cases about the scope of WOTUS brought the debate to the forefront of modern environmental discourse. Without a specific definition for WOTUS written into the CWA, many water-pollution issues involving smaller and ephemeral waterways were left open to interpretation on a case-by-case basis; pro-development lobbyists were constantly pushing for a narrow lens, while pro-environment groups advocated for more inclusivity. It was a seemingly endless game of tug-of-war.

The Obama administration decided to set the record straight. They penned the first official definition for “waters of the United States,” and in 2015 incorporated a new rule into the CWA that determined federal regulations did indeed apply to smaller streams, headwaters, and water systems like wetlands and ephemeral creeks so that pollution did not reach larger sources, especially those used for drinking water.

At the time, environmentalists praised the 2015 rule for adding clarity to legal situations that were challenging pollution concerns. However, other groups of people, like farmers, oil and gas producers, property developers, and agriculture lobbyists were quick to argue that the rule stifled economic growth prospects. The American Farm Bureau Federation told The New York Times that farmers would be damaged under the added weight of new permitting paperwork. 

Thus began a concentrated assault on one of the many environmental policies that the Trump administration would eventually strike down. According to an ongoing New York Times series that keeps track of the Trump administration’s environmental rollbacks, the repeal of the 2015 WOTUS definition is one of 64 successful regulation abolitions in the last four years. Thirty eight more repeals are currently “in progress.”

The Redefinition

While a redefinition of “waters of the U.S.” will affect the health of water systems around the country, waters in the West are perhaps the most vulnerable. The new WOTUS definition excludes ephemeral streams—waterways that only flow after bouts of precipitation—which are not only commonplace, but essential to ecosystems in arid climates like Colorado, New Mexico, and Arizona. In Colorado, the U.S. Geological Survey estimates 24 percent of streams are ephemeral; only 32 percent of streams flow year-round, and the rest are intermittent, flowing seasonally and sometimes dry. In New Mexico and Arizona, only about 7 percent of streams flow year-round.  

As The Hill recently reported, the Trump administration’s version of the rule will leave much environmental regulation to state and local authorities, and likely “increase the amount of pesticides and other industrial chemicals that leach into streams, wetlands and underground water sources.”

It will take years to write new state laws and find funding for regulatory gaps, according to Fresh Water News, a nonpartisan education news group based in Colorado. In a statement, Colorado Attorney General Phil Weiser said the state plans to take legal action to protect the waterways that are no longer subject to federal oversight. “We are pleased the final rule protects important agriculture exemptions and provides continued assurance that states retain authority and primary responsibility over land and water resources,” he said. “However, the federal government’s decision to remove from federal oversight ephemeral waters, certain intermittent streams, and many wetlands is based on flawed legal reasoning and lacks a scientific basis.”

Many environmental organizations throughout the West have already spoken up and set legal recourse in motion. “This is not just undoing the clean water rule promulgated by the Obama administration. This is going back to the lowest level of protection we’ve seen in the last 50 years,” Collin O’Mara, president and CEO of the National Wildlife Federation, said at a press conference. “This is a staggering rollback.”

There’s a creek that runs by my house in Boulder, dry in the winter, wet every spring, carrying Rocky Mountain snowmelt from the peaks I can see in the far west when I’m standing at the end of our street. As I wait for legal challenges to Trump and Wheeler’s new rule to crawl through the political machine once again, I want more than memories of playing in on-again off-again creeks. I want futures with my hands in the mud, my kids on the banks, my dogs lapping up ripples. The definition of U.S. water may be subject to rewrites and edits, certain streams may come and go, but there’s no escaping the permanence of our dependence on water, the value of its cleanliness, of its ability to connect us all. 

Cover photo: Water is a precious commodity on this planet and should be treated as such in all forms. / Photo by Liam Doran

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