So What Is All This Talk about WOTUS?

There has been a lot of talk lately about WOTUS (or “Waters of the United States”).  This post gives a brief overview about what the heck is going on…

In way of background, the United States government introduced the Clean Water Act (CWA) in 1972 in order to “restore and maintain the chemical, physical, and biological integrity of the nation’s waters by preventing point and nonpoint pollution sources, providing assistance to publicly owned treatment works for improvement of wastewater treatment, and maintaining the integrity of wetlands.” One part of this legislation defines what waters are under federal jurisdiction. A previous definition stated that a water was federally protected if it was a navigable water as referred to in the original 1972 Clean Water Act.

This required the Environmental Protection Agency (“EPA”) to do a case-by-case analysis to determine whether the water was governed by federal law or by state law. This ended up leading to a great deal of litigation to determine how expansive the definition of WOTUS was, with the United States Supreme Court in Rapanos v. United States providing a more exact definition.

The Supreme Court held that the definitional term “waters of the United States” can only refer to “relatively permanent, standing or flowing bodies of water,” not “occasional,” “intermittent,” or “ephemeral” flows. Furthermore, a mere “hydrological connection” is not sufficient to qualify a wetland as covered by the CWA; it must have a “continuous surface connection” with a water of the United States that makes it “difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”

In a concurring opinion, Justice Kennedy stated that wetlands that are not adjacent to traditionally navigable waters must have a “significant nexus” with one. After this decision, the EPA changed the definition of WOTUS to expand it and allow it to include virtually every wet area as long as it had a “significant nexus” to a traditionally navigable waterway.

The new rule using J. Kennedy’s “significant nexus” test was published on June 29, 2015 and went into effect on August 28, 2015 in all states except 13 where those states had filed a preliminary injunction blocking the implementation of the new rule. The 13 states, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming, claimed that the new WOTUS rule is a threat to state sovereignty because it asserts federal jurisdiction over wetlands and waters that should be subject to state government control.

Following this preliminary injunction, the United States Court of Appeals for the Sixth Circuit issued a nationwide stay on the new WOTUS rule. This ruling was caused by a lawsuit filed by Ohio, Michigan, Tennessee, Oklahoma, Texas, Louisiana, Mississippi, Georgia, West Virginia, Alabama, Florida, Indiana, Kansas, Kentucky, North Carolina, South Carolina, Utah, and Wisconsin. The decision by the Sixth Circuit also raised a question of which court challenges to the new rule should be brought in, i.e. district court or circuit courts.

There is still pending litigation in other states on the new WOTUS rule. There has yet to be a court that rules in favor of the EPA and its new definition, but the next big question seems to be who has the jurisdiction to hear these cases. With decisions from other courts expected soon, it should shed a light on how WOTUS will affect land users, such as farmers and livestock producers.