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Perhaps one of the most contentious and long-fought environmental battles in the courts has been the issue of Waters of the United States—or WOTUS, as it is commonly called. WOTUS defines the scope of federal jurisdiction under the 1972 Clean Water Act.
The act made it unlawful for any person to discharge any pollutant from a point source into navigable waters, unless a permit was obtained under its provisions. The term navigable waters and the act’s broadly interpreted language set the stage for litigation that is still ongoing. All waters with a “significant nexus” to navigable waters are covered under the law, but the term significant nexus has had broad and diverse judicial interpretation and significant controversy.
In 2015, the Obama administration adopted the Clean Water Rule and defined Waters of the United States. Opponents of the 2015 rule say it’s overreaching and expands the definition so it can be used to regulate drains and ditches as navigable waters. Supporters of the rule say it’s simply a clarification of the scope of waters of the United States and would not interfere with existing state, tribal and local government relationships in implementing the rule.
At least 24 states, including Indiana, filed challenges to the 2015 rule in district and federal courts. Barely a month after his inauguration, President Donald Trump issued an executive order directing the EPA and the agencies involved to review and rescind or revise the 2015 regulatory definition of WOTUS.
The executive order states that it is in the national interest to ensure that the nation’s navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty and showing due regard for the roles of Congress and the states under the Constitution.
In January 2018, the U.S. Supreme Court ruled that the U.S. Court of Appeals lacked jurisdiction over legal challenges to the 2015 rule. This resulted in the lifting of a federal court order that had blocked the rule since October 2015.
Now the agencies are engaged in a two-step process intended to review and repeal or revise the definition of WOTUS as set forth in the 2015 rule. Thousands of stakeholders have submitted comments during the 2017 comment period regarding the proposal to repeal the 2015 WOTUS definition. More recently, a supplemental notice of proposed rulemaking was issued to make it clear the agencies are proposing to repeal the 2015 rule in its entirety. A recodification of the pre-2015 regulations is ongoing to keep them in place until a new definition of WOTUS is finalized
The agencies plan to propose a definition that would replace the approach in the 2015 rule and the pre-2015 regulations, taking into consideration the principles that the late Justice Antonin Scalia outlined in the 2006 Rapanos v. United States opinion, which involved a defendant who filled a wetlands with sand.
In his lengthy ruling, Scalia argued the Clean Water Act jurisdiction includes relatively permanent waters and maintained his conclusions conformed to basic principles of federalism.
The saying that lawmaking “is like making sausage” doesn’t begin to describe the ridiculousness of this process. It should not take more than four decades to find a definition that protects our waterways while at the same time offers economic opportunities and practical regulations to individuals trying to make a living.•
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Gard is a former Indiana state senator and chairs the Environmental Rules Board and the Indiana VW Mitigation Trust Fund Committee. Send comments to ibjedit@ibj.com.
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