The problem with President Trump's WOTUS executive order
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On Tuesday President Trump issued an Executive Order that begins a process to dismantle our best chance in decades to clean up our nation’s waters – the Clean Water Rule issued in May 2015, designed to bring us closer to the same level of water purity we achieved during the Reagan years.  President Trump directed the Environmental Protection Agency (EPA) to “eliminate” the Clean Water Rule and replace it with something much less protective.  As pro-life Christians, we stand firmly against actions by the President and his administration that will make our water sources dirtier, as this will do.

All of life requires water, clean pure water.  It's something we take for granted, but shouldn't.  Dirty water remains a constant threat we must work to ensure doesn't harm our children and loved ones, as the terrible situation in Flint, Mich., reminded us.


Is our water safe?  Increasingly, the answer is no.   The 2015 Clean Water Rule was designed to make our water safer.  President Trump’s Executive Order moves us in the opposite direction.

For Christians called by Jesus to love others and defend the vulnerable, and for others of good will, this situation is unacceptable and presents an opportunity to make a difference.  We must work for a righteous water supply.

An important part of the reason our water isn’t safe for many is the inability of our government to adequately enforce the Clean Water Act.  In effect, in many cases our clean water cops are no longer on the beat, with nearly half of major polluters effectively beyond their reach.  Because of this hindering of enforcement, right now the drinking water sources of 1 in 3 Americans are threatened and increasingly undefended, and enforcement actions have dropped by almost half. 

Passed in 1972 and strengthened during the Reagan years, the Clean Water Act put America on the right track in defending our waters for supplying drinking water systems, agriculture, industry, and recreation. However, several court decisions and Congressional inaction have "muddied the waters" by thwarting our ability to protect what are known as “headwaters,” or the beginnings of our streams and rivers, as well as many wetlands. What was once easily defined during the Reagan administration now is a total mess of confusion, inaction, and failure.

A great deal of the problem stems from a decision in 2006 by the Supreme Court in Rapanos v. United States.  Unfortunately, rendering a 4-1-4 vote, the Justices could not agree on whether certain types of headwaters and wetlands fell under the Act’s protection.  Justice Kennedy, the “1” of the 4-1-4, wrote his own opinion.  He stated that headwaters and wetlands with a “significant nexus” to navigable waters are to be protected, i.e., those that “significantly affect the chemical, physical, and biological integrity of other covered waters” (p. 23).  The EPA and the Army Corps wrote the Clean Water Rule to comply with Justice Kennedy’s decision, and a majority of subsequent lower court cases have followed the Kennedy opinion as well.

We are thankful that the 2015 Clean Water Rule clarified the protection needed to move us closer to pure water and defend our children's health, and codified exemptions that have long applied to farmers.  Unfortunately, this Rule was challenged in court and its implementation stayed or halted. This means we’re currently in the same bad place we were before the Rule was issued.  The Trump Administration will ask the courts to halt judicial proceedings challenging the 2015 Rule.

President Trump’s Executive Order not only tells the EPA to dismantle the Clean Water Rule.  It directs the EPA to start work on a new rule “in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States,” who wrote the plurality opinion for the Court’s four conservative justices.

The end result will be dirtier water for many Americans, because far fewer bodies of water will be protected under Justice Scalia’s much narrower opinion.

We need a Clean Water Rule like the one issued in 2015 based on Justice Kennedy’s opinion, or clarifying legislation that achieves the same or greater results.  This would allow us once again to attain the level of water purity achieved during the Reagan years, and then to build upon such success for even greater water purity and a righteous water supply.

The Rev. Mitch Hescox is President/C.E.O. of the Evangelical Environmental Network

The views expressed by this author are their own and are not the views of The Hill.