WOTUS Surfs The Tide Of Changing Administrations And Lawsuits

POTUS, FLOTUS, SCOTUS – the U.S. government loves a memorable acronym. WOTUS, though, may fly under the radar most of the time for much of the general populace.

Short for Waters of the United States, WOTUS is (are?) governed by the 1972 federal Clean Water Act (CWA) – and the topic has been the subject of even more intense legal and political scrutiny for a generation, as well as of regulatory and practical concern to farmers and others working in agriculture.

The state of polluted waterways a half-century ago was kind of a trash fire. Literally – news stories from the late 1960s detail the horror of fires igniting on various U.S. rivers from a combination of spilled or discarded petroleum and debris in the water. The Cuyahoga in Cleveland is likely the most recognized, but there were others around the same time, including the Buffalo River in New York and the Rouge River in Detroit. Concern about water pollution was one of the tentpoles of the environmental movement that finally led to Congress creating the U.S. Environmental Protection Agency (EPA) in 1970.

Two years later, Congress almost unanimously overrode presidential veto to pass the CWA, which was an amendment of the Federal Water Pollution Control Act of 1948 – which itself rested on components of the 1899 Refuse Act. You can spend an evening curled up with the CWA’s finer points at your leisure, but its basic function was to implement pollution control programs to maintain higher water quality standards and aquatic ecosystems throughout the nation.

Each instance of “waters of the United States” in the CWA is preceded by the word “navigable.” Attorney and associate professor Jonathan Coppess, who also serves as director of the Gardner Agriculture Policy Program at the University of Illinois’ College of Agricultural, Consumer and Environmental Sciences, is writing an ongoing summary – first part here – of the legal disputes surrounding “navigable” brought before one of our venerable OTUSes, the U.S. Supreme Court.

Its 2006 Rapanos v. United States decision was a 4-1-4 split among the nine justices. Then-Justice Antonin Scalia wrote one of the plurality opinions in which he sought to more narrowly define “waters of the United States” than Congress deliberately did in 1972. Scalia wrote these waters to include “only those relatively permanent, standing or continuously flowing bodies of water forming geographic features that are described in ordinary parlance as streams, oceans, rivers, and lakes” and excluded “channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.”

Though he was the “1” in the 4-1-4, Justice Anthony Kennedy did concur with the Scalia plurality to narrow the “waters” definition, to apply a “significant nexus” test to smaller bodies of water and wetlands that may significantly impact “navigable waters” chemically, physically or biologically. Coppess explained Justice John Paul Stevens, who authored a dissenting opinion on behalf of remaining four justices, argued for a broader application of the CWA by extending the definition of “waters of the U.S.” to include wetlands adjacent to tributaries of traditionally navigable waters.

“I think it’s just been confused ever since,” Coppess said of the effort to regulate what a WOTUS actually is. “I think part of the problem is that the Scalia opinion … provided a very limited scope. He tried to define the term ‘waters’ and then limit it down.” As a result, various parties have tried to compare the EPA’s jurisdiction to Scalia’s standard – a standard Coppess noted was far more limited than what Congress intended for the law 50 years ago.

This has put the EPA in a “rock-and-a-hard-place situation” with respect to trying to enforce tenets of the CWA – and given many a WOTUS watcher headaches. While lawsuits did challenge the CWA prior to 2006, it seemed courts were generally deciding in favor of a broader application of what constitutes a governable water body.

The EPA and U.S. Army Corps of Engineers under President Obama tried to address some concerns, including from farmers, when defining WOTUS in the 2015 Clean Water Rule, setting out categories of water and wetlands covered on a scientific basis – and just as deliberately excluding some, such as groundwater and prior-converted cropland. Later, the Trump administration directed the EPA and Corps to revise the Rule to align more with Scalia’s definition in order to limit EPA “overreach,” which it did in 2019.

And now another administration is wrestling with the jurisdictional scope of the CWA, as the Biden EPA recently published its proposed rule in the Federal Register, where it has amassed about 2,300 remarks only a couple weeks into the 60-day public comment period. “Not much has changed,” Coppess observed. “Basically, whoever issues the rule gets sued from (interests of) one side or the other.”

Which brings us, in fact, to Sackett v. EPA – a 2008 case now before SCOTUS for the second time and awaiting a decision after oral arguments last October. But that is for next time, when we will also consider highlights of the proposed EPA rule and concerns from ag-related groups and farmers.