Waters of the US: Navigating New Political Currents

For years now, agriculture has been closely following the drama surrounding the definition of “Waters of the United States,” commonly referred to as WOTUS. With a new administration in place and movement on this issue in Washington, D.C., this article offers an overview of where we have been and where we are going.

The 1972 Clean Water Act gave federal jurisdiction to the Environmental Protection Agency (EPA) and Army Corps of Engineers (COE) over waters of the U.S.. Essentially, a person who wishes to do certain activities in a water of the U.S.— such as point source discharge of pollutants or discharging dredge and fill materials—must obtain a federal permit to do so. The act, however, offered no explanation of what was included in the definition of a water of the U.S.

For the next 40 years, it was left up to courts to address this issue. Several times, the issue of whether a wetland, isolated pond or other water fell within the federal jurisdiction made its way to the U.S. Supreme Court. This culminated in 2006 in a case called Rapanos v. U.S. Army Corps of Engineers. In that case, the court had to determine whether wetlands, lying near ditches or drains that eventually emptied into a traditional navigable waterway, were considered a water of the U.S.

In a complicated turn of events, the Court landed 4-1-4. Breaking the 4-4 tie was Justice Anthony Kennedy. But the opinion offered little clarity and disputes continued.

Some nine years later, the EPA and COE promulgated a regulation that defined WOTUS under the Clean Water Act. Almost immediately, lawsuits began pouring in across the U.S., claiming the new definition was overly broad and exceeded the scope of authority granted to the agencies pursuant to the Clean Water Act. The U.S. Court of Appeals for the Sixth Circuit issued a nationwide stay on the rule pending litigation.

In February 2017, President Donald Trump issued an executive order that required the EPA and COE to “rescind or revise” the 2015 Rule. The order said the agencies should “consider interpreting” the term consistent with former Associate Justice Antonin Scalia’s opinion in Rapanos. In June, the EPA announced it would be taking the first step to rescind the 2015 rule and to recodify the definition of WOTUS prior to the passage of the 2015 rule.

Where are we now?

Rescinding a rule already promulgated is not as simple as it might sound. The EPA has published a new proposed rule in the Federal Register, which essentially seeks to codify the rule as it was prior to the 2015 EPA rule being passed (and, due to the Sixth Circuit stay, the approach currently in place across the U.S.). Specifically, the proposed rule would rescind the 2015 approach and codify an approach consistent with the Rapanos Supreme Court decision, applicable case law and other long-standing agency practices.

After the comment period ended Aug. 28, 2017, the EPA planned to conduct a “substantive re-evaluation” of the definition of WOTUS and conduct notice and will likely propose a new rule after property notice and comment rulemaking occurs.

Meanwhile, the 2015 rule is not in force anywhere in the U.S., as the Sixth Circuit stay remains in place. Therefore, currently, the definition of WOTUS is governed by the pre-2015 rule that got us the complex decision in the Rapanos case.

Unfortunately, until a new rule is promulgated, landowners are left with attempting to interpret the Rapanos decision in order to know whether federal permits are required on their land. Hopefully, the revised rule will offer more clarity and certainty for both the government and landowners alike. 

Note: This story appeared in the September 2017 issue of Dairy Herd Management.