The Implications of Redefining “Waters of the United States” – New Essay in Encore Magazine

Water — and I can’t believe I have to keep saying this — is important. Fifty years ago, we passed legislation to protect our most precious natural resource: the Clean Water Act. However, recent action by the EPA under the Trump administration threatens to undo many of the protections the CWA currently affords.

By the simple act of re-defining what constitutes “waters of the United States” (WOTUS), many of our nation’s waterways are now under threat of pollution, for the benefit of the few, and over half of our nation’s wetlands are being eyed for development. The implications are staggering, and to try and make sense of it all, I spoke with several experts to unpack what the impacts to our local waterways in the Cape Fear region might be.

Read the full story on encore’s website by clicking here, or scroll down for the full text. But don’t stop there: our water needs a voice, an advocate for its future, and you can be a part of that. Reach out to your local representative, wherever you are reading this from (for it is a nationwide issue), and demand action be taken. Water is a necessity for all of us, not a luxury, or a dumping ground for the dirty profits of a few corporations. Speak out — make your voice heard. Our waters need you.


ENDANGERED WATERS: Trump Administration overturns Clean Water Act, which We the People will pay for in the end

By John Wolfe

There is an old television commercial that shows a Native American man in feathers and buck leather, paddling a canoe through a filthy river, weaving through litter under the smoke of heavy industry, as a baritone voiceover announces, “Some people have a deep abiding respect for the natural beauty that was once this country.” The man pulls his canoe up on a trashed beach. The voice continues, “And some people don’t.” Then, the camera pans to someone in a car who throws more litter out of the window, which lands at the man’s feet. By now it has become a cultural trope: He turns to the camera, a gaunt look on his face, a single tear in his eye, as the announcer concludes, “People start pollution, and people can stop it.”

This ad is from the 1970s, a time when an Italian actor could play an Indian chief in a national commercial. Companies, farms, factories and mines poured whatever they wanted into our nation’s waterways. It was a time when rivers caught on fire because they were so dirty. The Cuyahoga in Cleveland, Ohio, famously burned from industrial pollution, spurring then-President Nixon to sign the Clean Water Act into law. It launched protections that we the people have enjoyed for 50 years. Unfortunately, the latest action by the eviscerated EPA threatens to return us to that time, undoing five decades of environmental progress.

In late January the EPA announced they were changing the legal definition of the term “Waters of the United States” (WOTUS), the latest of nearly 100 environmental safety regulations the Trump administration has weakened or eliminated in the past three years. Four categories of waterways remain protected under the Clean Water Act: large navigable bodies of water, like the Cape Fear River; tributaries, lakes and ponds, and “major” wetlands. But other bodies of water—including ephemeral streams which only flow for part of the year, like groundwater, cropland and farm ponds—are no longer under federal control. Thus it allows landowners and property developers to “dump pollutants like pesticides and fertilizers directly into hundreds of thousands of waterways, and to destroy or fill in wetlands for construction projects,” according to the New York Times.

The WOTUS revision effectively removes protections from 18% of streams and 51% of wetlands nationwide. The EPA claims the new rules will result in economic growth, but why does that term so often go hand in hand with environmental destruction? Even the EPA’s own Science Advisory Board, made up largely of Trump appointees, has opposed this change. Board chair Michael Honeycutt told NPR the action ignores established science. “It does not support the objective of restoring and maintaining the chemical, physical, and biological integrity of those waters.”

Ostensibly, EPA leadership claims it will reduce federal overreach and allow states to decide for themselves to set limits on pollution. State DEQ Secretary Michael Regan said in a statement, “DEQ will continue to use the state’s authority to protect NC’s water quality and natural resources for the people of our state.”

In North Carolina, we have a law called the Hardison Amendment, which states that no state agency can adopt “a rule for the protection of the environment . . . that imposes a more restrictive standard, limitation, or requirement than those imposed by federal law.” It effectively neuters our state’s ability to adopt stronger protections.

* * * * *

“It’s almost impossible to know all the ways that this could affect the river,” says Kemp Burdette, the Cape Fear Riverkeeper. We are sipping hot tea in the cabin of my small ketch, moored on the river. Out of the portholes, the day is clear and bright. “It’s probably going to take several real water quality emergencies before we fully understand how it’s going to affect the river.”

While the Clean Water Act still technically protects the main arteries of our nation’s waters (like the river), Kemp explains, the WOTUS revision has removed protections from the capillaries, which feed into those arteries. Anyone who remembers fifth-grade science class will recall the water cycle, which illustrates the simple fact that all water is connected, from the greatest ocean down to the smallest trickle. Injecting poison into the tip of a toe will still corrupt the heart. That’s what’s happening now.

This is especially unfortunate, Kemp continues, because among the small waterways no longer protected are so-called “ditched streams.” In North Carolina, these are typically found on the coastal plain around factory farms, or CAFOS (myriad evils, which encore has reported on extensively in the past). No other river basin in the world has as high a concentration of factory farms as the Cape Fear—a dubious accolade, at best. And that amount is still growing, as chicken farms continue to crop up. In the past, organizations like River Watch were able to stop farmers from spraying hog waste under the Clean Water Act if they could prove and document that waste from their fields was ending up in a ditch. Now, Kemp expects to see a huge increase in the amount of waste being spread onto fields and running off into our waterways. “[The farmers will be] doing it with impunity because there’s no longer a federal law to say you can’t dump raw animal waste into a water body,” Kemp continues. “Even if you’re doing it directly upstream of a place where people fish, where people swim, where people kayak, there will be absolutely nothing to stop that from happening.”

Besides the gross factor, excessive waste in waterways has been extensively proven to cause fish kills and bacterial and algae blooms, transmogrifying the once-clear water column into something like rotting, green milk—big problems for drinking water, especially in rural, already-stressed filtration plants that might not have the capabilities to remove all the toxins. Before it ever gets filtered, that water (and the toxins in it) could come in contact with people or their pets. Kemp mentions dogs who died after retrieving tennis balls thrown into a local retention pond last summer, casualties of similar conditions. What if next time it’s a child?

Another major concern is that protections have been removed from groundwater. One reason we’re still seeing concerning levels of PFAS and emerging contaminants in the Cape Fear River is because these chemicals have found their way into the groundwater after Chemours’ air pollution condensed and fell as rain. So, eventually, it finds its way into the earth. Back to the fifth-grade water cycle lesson: A lot of groundwater, which many people drink straight from their wells, flows into surface water, which thousands of people drink.

This ties into the crux of the issue: Without these laws in place, environmental advocacy nonprofit organizations like River Watch—the too-thin line of defense protecting us from polluters—are crippled in their ability to sue and demand clean-up action. The thought that industry will self-regulate is a preposterous hypothesis that history has proven false. We need strong protections for our sake—we, as in the people who are drinking the water. Hasn’t our Cape Fear community learned after the fluorochemical crisis we’ve been dealing with for the last three years?

“We sued Chemours under the Clean Water Act; we sued Duke Energy under the Clean Water Act for contaminating Flemington’s groundwater supply with coal ash,” Kemp says. “So if you lose the ability to say you can regulate what’s coming out of a contaminated site above a drinking water intake, then you’re going to have real problems. Because right now we can.”

* * * * *

“The benefits of wetlands cannot be overstated,” says Kerri Allen, Coastal Advocate for the NC Coastal Federation.

We’re in her light and airy office. Out of her window, I catch an occasional glimpse of the salt marsh which beards tidal Lee’s Cut at Wrightsville Beach. North Carolina has over 5.7 million acres of wetlands; they play critical and natural roles as habitat for wildlife, storage for nutrients and carbon, and their increasingly important function as a buffer against storms and sea-level rise. Wetlands are the backbone of our $95 million seafood industry and $3.4 billion tourism industry.

“You can’t grow oysters without healthy wetlands,” Allen says. “All of our [local] tidal creeks and waterways are impaired due to bacterial pollution from [stormwater] runoff. So when you add in everything else from the upstage streams, streams that aren’t going to be covered, it gets pretty close to the point of no return.”

Researchers at UNCW’s Center for Marine Science have shown that once a mere 10% of a watershed is built upon, severe impacts to wildlife and water quality can be expected. And if that number rises to 30%?

“You start to see some irreversible degradation to that ecosystem,” Allen says. “With this I fully expect to see more development in already vulnerable areas in New Hanover, Pender and Brunswick counties, areas that have had protections from development are going to lose those.”

That development will have major impacts, not just on the ecosystems, but on the people who live in and near new structures, as we reckon with more frequent and powerful hurricanes caused by anthropogenic climate change. Allen fully expects to see new development in areas prone to flooding. As anyone who lived through Florence knows, major hurricanes are not only a possibility; they are an inevitability. Even with minor storm events, our lowest-lying lands occasionally flood.

“Not a week goes by that my phone doesn’t ring with citizens reaching out about these concerns,” Allen admits. “More development in these vulnerable areas is only going to exacerbate that problem.”

Geoff Gisler, senior attorney with the Southern Environmental Law Center, says in an email to encore, “We are closely reviewing the new rule, and evaluating whether it complies with applicable laws.” Once the rule is published in the federal register, he says, it can be challenged in federal court, a step he believes many states’ attorney generals will take. Citizens locally can encourage NC’s Attorney General Josh Stein (through a form at and DEQ to be a part of that challenge. The longer the legal fight, the worse it is for our waters, and the people and animals who rely on them to survive.

* * * * *

The people who will benefit from the change to the Clean Water Act are corporations: factory farms like Smithfield, Tyson and Butterball; industrial facilities like the Chemours plant in Fayetteville; and property developers who are undoubtedly already scheming to turn wetlands into high-profit, high-density condominiums. But who pays for this? We the people, of course. Our insurance premiums will rise to pay for local structures flooding where they never should have been built. Our water bills will creep up, as our public utilities have to buy expensive upgraded filtration systems to keep our water clean enough to drink. It’s the same old story: The bastards in charge of the country keep selling us out to line their own pockets—and then have the audacity to present us with the bill. I’m sick and tired of writing it over again. Why do we have to keep explaining we need clean water to live?

I’m no Native American, but this week I did take my little skiff out on the Cape Fear to explore our wetlands. At first glance the river was clean and clear, the tide still flooding and a light breeze from the south. When I nosed into the creeks, I encountered a dull slick trapped in the more stagnant streams. A brown, oily haze besmirched my paddles; it clung to the blades of the phragmites and Spartina grasses. Our poor river—and she is ours, truly, in the public trust—has her problems. Industrial farming, coal ash, emerging flurochemical contaminants … we’re a long way past simple litter.

I didn’t shed a single tear, but I did get a sinking feeling this will probably get worse before it’s better. I paddled deeper, looking for hope and a way forward, but all I found was more dirty grass. When I stood up to see further, my presence startled a great blue heron. With a whisper of feathers, he took flight and clawed his way aloft, searching for a place to roost undisturbed by the actions of humanity.

I don’t know if a place like that still exists. But if it does, I hope he finds it.


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