In a memo by the U.S. Environmental Protection Agency Administrator, Pruitt decreed that he, rather than EPA experts, will now determine which waterways will be protected under the Clean Water Act (CWA) Section 404 dredge and fill permitting program as “waters of the United States” (WOTUS).
“Everyone understands Scott Pruitt has spent many years, first as Oklahoma’s Attorney General and now as EPA Administrator, trying to find a way to eliminate important Clean Water Act protections for rivers, streams, lakes, and wetlands,” said Kelly Hunter Foster, senior attorney for Waterkeeper Alliance. “Since none of his tactics have succeeded to date, it appears he is now trying to assume the power to unilaterally decree which waterways will be protected against dredging, filling, and conversion into waste disposal sites. This won’t work either.”
The CWA’s definition of WOTUS is essential to the protection of human health, the wellbeing of communities, the success of local, state and national economies. It is also crucial to the functioning of our nation’s vast, interconnected aquatic ecosystems, and the many threatened and endangered species that depend on those resources. If a stream, river, lake, or wetland is not included in the definition of “waters of the United States,” untreated toxic, biological, chemical, and radiological pollution can be discharged directly into those waters without meeting any of the CWA’s permitting and treatment requirements. Excluded waterways could be dredged, filled and polluted with impunity because the CWA’s most fundamental human health and environmental safeguard — the prohibition on unauthorized discharges — would no longer apply.
Pruitt is taking the authority to decide which waterways fall under WOTUS away from the regional offices where local experts familiar with the waterways can make scientifically-informed recommendations and decisions based on the law. Pruitt has made it clear that he would like to limit CWA protections only to large bodies of water that can be “used as pathways” for interstate commerce. That would be both dangerous and contrary to the law he is charged with implementing. Fortunately, Pruitt can’t change that law by writing a memo giving himself more power — his decisions are still required to be based on science and the law and, if they aren’t, they will be challenged in the courts.