On Dec. 11, 2018, the Trump administration announced its proposal of a new Waters of the United States (WOTUS) rule. This announcement very well may go down as one of the most historic days for the Clean Water Act (CWA). For starters, the CWA has only been around for 47 years; it was enacted in 1972. Much of its four-decade history has centered on one debate: what constitutes WOTUS?
The CWA grants the U.S. EPA with the authority to regulate “navigable waters.” The act ambiguously defines “navigable waters” as “waters of the United States.” The remaining details are left to the imagination of the implementing agencies—the EPA and the U.S. Army Corps of Engineers.
Over time, the federal government has attempted to define what is and is not considered WOTUS. Most recently, in 2015, the EPA and the Corps attempted to bring clarity to the issue and clean up a chaotic Supreme Court decision in Rapanos v. U.S. In the Rapanos case, the Court came to a decision without a majority of the justices. Four justices agreed to Justice Scalia’s opinion, Justice Kennedy wrote a concurring opinion, and four justices dissented—creating a 4-1-4 decision. Because there was not a majority, there is no real “rule of law,” and the concurring opinion is believed to be the controlling opinion. In his concurring opinion, Justice Kennedy devised a “significant nexus” test; meaning, if a water or wetland has a significant nexus to a traditional navigable water, then it is considered WOTUS and is under the jurisdiction of the U.S. EPA or the Corps.
The EPA and the Corps, under the Obama administration, wrote a rule that would define WOTUS and primarily conform with Justice Kennedy’s concurring opinion. The final rule produced by the Obama administration in 2015 took Justice Kennedy’s “significant nexus” test to its extreme to the point where the EPA, for all intents and purposes, declared that almost all of the of the U.S. is considered WOTUS and, therefore, would be subject to the jurisdiction of the U.S. EPA or the Corps.
This WOTUS rule concerned much of U.S. agriculture and business. First, the rule extended well beyond the legal limits Congress granted the EPA and the Corps when it gave the agencies the authority to regulate “navigable waters.” Second, because virtually all of the U.S. was considered under the jurisdiction of the EPA and/or the Corps, any agricultural operation would have to get the proper permits and permission from the appropriate agency before performing any work to the land. Failure to do so could result in a fine of up to $53,484 per day.
When President Trump took office, he immediately reversed course by signing Executive Order 13-778, “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule” on Feb. 28, 2017. After the executive order was signed, most people believed WOTUS was solved and no longer would be an issue for agriculture. However, that was only the first step. Fast forward two years and after numerous other proposed rulemakings and many, many court battles, we arrive at the announcement of the proposed new WOTUS rule on Dec. 11, 2018.
The proposed rule is not a complete reversal of the Obama administration’s WOTUS rule, however. The new rule outlines jurisdiction for EPA and the Corps in six specific areas:
- Traditional navigable waters—i.e., large rivers such as the Mississippi River
- Intermittent tributaries extending to traditional navigable waters
- Certain ditches: ditches that can conduct commerce, ditches subject to ebb and flow of the tide and ditches adjacent to other jurisdictional waters
- Certain lakes and ponds (excluding those that are man-made)
- Impoundments of jurisdictional waters
- Wetlands adjacent to other jurisdictional waters
However, unlike the Obama rule, the Trump administration’s proposed rule explicitly prohibits the EPA from regulating prior converted cropland, groundwater and ephemeral streams—streams that only contain water after rain or snowmelt. This primary difference is what will contain the EPA and the Corps’ authority to the more traditional idea of “navigable waters” and maintain the federalism principles and congressional intention of the CWA.
Furthermore, the Trump administration’s rule explicitly does not follow Justice Kennedy’s “significant nexus” test. Instead, it is more closely in line with Justice Scalia’s plurality opinion. Undoubtedly, this will be a point of challenge in the courts.
It has taken a substantial amount of effort by the Trump EPA just to get the proposed rulemaking to the public. And the fight is far from over!
Now begins the critical time of public comment, which will be followed by the publishing of a final rule and undoubtedly battles in the courts. It is almost inevitable that a few years from now the U.S. Supreme Court will be determining the legality of the Trump administration’s WOTUS rule. The work needed to solidify the rule’s legality must be completed now!
This comment period will be remembered as one of the most critical in CWA history. We are at a decision point, and our actions now will determine the fate of WOTUS in the future. If the Trump administration is able to finalize a rule that is substantially similar to the proposed rule and able defend its legality from legal challenges, then it will be the most monumental step the CWA has ever seen. It will protect the nation’s waterways, answer a decades-old question and provide much-needed certainty and clarity to the agricultural community. For this reason, ARA urges all of its members to comment on the rule and be a part of history.