Robert Smith: Waters of the United States

We are once again locked in a debate regarding the proper role of the federal government to regulate what is termed waters of the United States (WOTUS) under the Clean Water Act. On Dec. 30, the federal Environmental Protection Agency (EPA) announced the final “Revised Definition of ‘Waters of the United States’” rule. On Jan. 18, the rule was published in the Federal Register and is listed to become effective on March 20.

The Clean Water Act was passed by Congress and signed into law in 1972. Congress enacted the Clean Water Act “to restore and maintain the chemical, physical and biological integrity of the nation’s waters.” As stated in regard to the Clean Water Act (33 U.S. Code 125 — congressional declaration of goals and policy):

“It is the policy of the Congress to recognize, preserve and protect the primary responsibilities and rights of states (bold added for emphasis) to prevent, reduce and eliminate pollution, to plan the development and use (including restoration, preservation and enhancement) of land and water resources, and to consult with the administrator in the exercise of his authority under this chapter.”

The waters of the United States rule was originally developed in 1986 and revised in 1988 to clarify which waters were considered waters of the United States under the Clean Water Act. Consequently, which waters are regulated by the states. From a federalist perspective, the original focus of waters of the United States was waters that abutted or spanned multiple states.

Defining what constitutes waters of the United States has been the subject of prior administration regulations and extensive litigation. The definition of waters of the United States has been a contentious issue with potentially far-reaching ramifications to many considerations, including an individual’s or organization’s use and development of the land, commerce, the appropriate role of the federal versus state government, and the quality of surface water in the country.

In 2015, the Obama administration expanded the definition of waters of the United States. Subsequently, the Trump administration developed and put in place the Navigable Waters Protection Rule. The Biden administration has taken us back to the Obama administration’s similar interpretation.

A key issue in these various administrations’ definitions is the term “significant nexus.” In essence, can the federal government regulate water that is considered to be located in such a way as to constitute a significant nexus with a waters of the United States; i.e., water that has a significant nexus to a navigable water is also considered a water of the U.S. and is regulated by the federal government.

The essence of the competing definitions are addressed by former Justice Antonin Scalia and now-retired Justice Anthony Kennedy (Rapanos v. United States). In Scalia’s opinion, the law should apply only if there is a continuous surface connection relatively permanent, standing or flowing bodies of water. In the opposing opinion, Kennedy indicated that a body of water falls under federal jurisdiction of there is a “significant nexus” to a navigable waterway.

At what point is a significant nexus established between navigable waters and the remainder of the waters in the water cycle? This term is not defined and open to interpretation.

Some have argued that this new interpretation of U.S. waters will significantly expand federal control over land and water across the nation, and trigger a torrent of additional regulatory requirements and impediments to the wise use of our natural resources. The issues have been thoroughly evaluated by innumerable industry groups, land developers, law firms, consulting companies, and even various state and county farm bureaus around the country, who have provided their assessment of the potential for staggering overreach of this new rule.

As a reflexive caricature of itself, the Biden administration’s focus on climate change and environmental justice is also evident in the rulemaking. The administration sees mitigation of the effects of climate change and the protection of underserved communities as justifications for expanding the reach of the Clean Water Act through a revised definition of waters of the United States.

It seems reasonable that the federal government’s approach to redefining waters of the United States can be looked at skeptically. Is this a channeling of environmental protection efforts towards a centralized, federal command and control bureaucracy? Have the federal agencies in this instance achieved their stated goals of clarity and protectiveness over our natural resources, land, and water. If past is prologue, there could be an extended legal battle to define the proper role of the federal government and its control over our daily activities, economy, and lives through their redefinition of waters of the United States.

Robert Smith is an environmental scientist and co-owner of a Pittsburgh-area environmental consulting company.