It was a big week for our nation’s bedrock water protection law, the Clean Water Act (CWA). 

Established in 1973, the CWA ensures that we have clean water for drinking and other uses. A primary element of the CWA is that if a person, business, community or other entity wants to discharge pollution into a waterway, it must do so in a manner that protects water quality.

Most people acknowledge and support the need for clean water. But the topic gets muddied (excuse the pun) when it comes to what exactly constitutes “water.” Similarly, what is or is not a “discharge” is a source of perennial debate. This week, the meaning of both these words became clearer.

WOTUS according to POTUS

On Tuesday, the Trump administration and the Environmental Protection Agency dealt their latest blow to environmental protection: the repeal of an Obama era definition in favor of its own, far more restrictive opinion of what water really is.

A “water of the United States” or WOTUS is the crux of the matter, because the CWA only applies when someone is dumping pollution into a WOTUS. In short, the Trump EPA redefined a WOTUS to include far less water than it used to, allowing more dumping of waste at no expense to the polluters.

The new WOTUS definition no longer covers myriad rivers and streams that don’t flow year round although they still carry pollution. It also removes from protection many wetlands and ponds where the connections between the wetland or pond and a river are not apparent to the eye. For the most part, the new definition ignores the science of hydrology which tells us there is a connection between surface water (think rivers, lakes, ponds, wetlands) and groundwater (think wells, any water underground, most of our drinking water).

Neither the Trump administration nor the EPA provided a map or any listing of specific water it believes is no longer covered. But Idaho and most arid regions in the United States will see this play out as removing many of our “intermittent waters,” meaning streams that flow “continuously during certain times of year and more than in direct response to precipitation” from CWA protection.

In arid parts of Idaho, that’s a lot of rivers and streams. Among others, the Big Lost and Little Lost Rivers are likely no longer protected. But just because these rivers and streams don’t always have water flowing through them in no way means they don’t carry pollution when they do flow or they aren’t connected to major water bodies that we all rely on.

Most galling about the proposed new WOTUS definition is  the expense to public and ecological health. It’s an example of prioritizing the desires of polluters so they don’t have to pay to clean up their waste while allowing it to literally flow downstream where people and the environment either get sick from it or bear the costs of cleaning up someone else’s mess.

SCOTUS calls foul on discharges to groundwater not being a WOTUS

Coincidentally, on Thursday, the U.S. Supreme Court issued its opinion on a case it heard last fall. The case centers on whether Maui County needed a CWA permit to discharge its municipal waste by injecting it into groundwater that ultimately connected with surface water.

In a 6-3 opinion, SCOTUS held that Maui County would need a permit if the discharge into groundwater was the “functional equivalent of a direct discharge” of pollution to surface water. If you appreciate clean water and believe it’s the responsibility of someone discharging pollution into water to clean it up beforehand, this is a great outcome.

However, like many opinions before it, there are some grey areas on exactly what is or isn’t impacted. And we’ll know more once the case gets back to the Ninth Circuit federal appeals court to decide whether or not Maui County’s practice is in fact the “functional equivalent of a direct discharge.”

What’s this all mean?

The SCOTUS opinion conflicts with aspects of the Trump administration’s WOTUS Rule that claims discharges to groundwater don’t require a CWA permit. And that’s great news, because the SCOTUS is the law of the land, no matter what Trump’s EPA says.

Yet, the SCOTUS ruling may have just created the latest in a long string of questions about what exactly is meant by certain aspects of the CWA. “Functional equivalent of a direct discharge” is not a clear standard. And while the Court provided parameters of how to determine it, this is likely to spur the next round of CWA litigation.