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What's Next for WOTUS?

17:40PM Oct 27, 2017

Few things in recent history have unified the agriculture community more than the Waters of the U.S. (WOTUS) rule. The 2015 regulation was an easy target and timed perfectly for the election. In the wake of the 2016 election, the Environmental Protection Agency (EPA) and the Army Corps of Engineers (the Corps) announced their intention to rescind the regulation. That’s the end of it, right? Not yet.

WOTUS is likely to be part of our vocabulary for the foreseeable future. The controversy around the 2015 WOTUS rule is just the latest episode in a drama that began in 1972 when Congress passed the Clean Water Act (CWA). Where to draw the jurisdictional line between federal and state authority continually frustrates regulators and the regulated community.

The CWA prohibits the unpermitted discharge of pollutants or dredged or fill material into navigable waters. The act defines navigable waters as waters of the U.S., without providing further elaboration. The limitation to navigable waters is mandated by the Constitution’s Commerce Clause. Because over-the-water navigation impacts interstate commerce, the federal government can exert authority whereas the Constitution reserves truly local matters for state governments. Unlike the federal government, there are no limits on a state government’s jurisdiction.

For the past 45 years, each presidential administration has attempted to nail down what is and is not offlimits for the federal government, with courts ultimately approving or rejecting their policies. Courts interpreted the act’s jurisdiction to extend beyond

actually-navigable waters, stating protections for navigable waters would be ineffective without protections for tributaries. But the federal government has run afoul when claiming jurisdiction over waters without a direct surface connection to navigable waters. For instance, the Corps was swatted down when it tried to claim jurisdiction over remote ponds in a quarry on the basis that they were frequented by migratory birds.

Rapanos v. U.S. was the last major Supreme Court case addressing the CWA’s jurisdiction (2006). The court had to decide whether a wetland adjacent to a tributary feeding a navigable river was a water of the U.S. The court issued a 4-1-4 decision, meaning the decision was amenable to two interpretations. Under the late Justice Scalia’s opinion, the CWA’s jurisdiction is limited to tributaries and wetlands with permanent surface water connections to navigable rivers and seas. Justice Kennedy’s opinion allowed the CWA’s jurisdiction to extend to waters with a “significant nexus” to navigable waterways.

Rather than wait for another clarifying Supreme Court decision, the Obama administration moved forward with a plan to broaden their authority relying on Justice Kennedy’s “significant nexus” test, which resulted in the much-maligned 2015 WOTUS rule. Now, the Trump administration is in the process of rescinding that rule and will likely seek to replace it with a less invasive definition of “waters of the U.S.” that more closely aligns with Justice Scalia’s interpretation. The Trump administration has not made its plans public, but it will likely seek to limit the CWA’s jurisdiction to surface waters with a direct connection to navigable rivers and seas.

While this move will likely be welcomed in farm country, it’s possible the new WOTUS rule will be subject to extensive litigation from activist groups and some liberal state attorneys general, tying up the rulemaking for years. If the White House changes hands in 2020, the rulemaking could outlast the Trump administration, allowing the next administration to put their imprint on the CWA’s jurisdiction.