A U.S. district judge in North Dakota issued an injunction yesterday halting the Biden administration's new rule defining the waters of the United States (WOTUS) under the Clean Water Act. The injunction was issued pending the outcome of a lawsuit by a 24-state coalition in the U.S. District Court for the District of North Dakota. The coalition argued that the Environmental Protection Agency's (EPA) WOTUS definition extends far beyond Congress' original intention for the Act. This is just the latest chapter in a long series of regulatory snafus that has flummoxed the Obama, Trump, and now the Biden administrations.
The federal Clean Water Act states that its objective is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." In order to achieve that, the Act declares that "it is the national goal that the discharge of pollutants
into the navigable waters be eliminated by 1985." Without going too deeply into the history of riparian law, in the 19th and early 20th centuries, upstream polluters could often be ordered by courts to stop polluting or compensate downstream users. For example, in Whalen v. Union Bag Paper Co. (1913), a court ruled in favor of downstream farmer against a polluting upstream factory. The factory, worth $1 million and employing 400 people, was forced to close.
Over time, however, courts and legislatures adopted a reasonableness standard that tended to favor the more economically valuable uses. The upshot was that owners of factories could dump their pollutants more freely into waterways with less fear that they would lose lawsuits brought by downstream landowners. Most waterways became essentially common property regulated by state governments. The federal government got more involved in regulating water pollution with the passage of the Clean Water Act in 1972. As various presidential administrations seek to adopt broader WOTUS definitions, more American landowners are at risk of becoming subject to these regulations.
Most folks might think that navigable waters means some sort of surface water upon which a person could "navigate" while ensconced on, say, at least an inflated pool float. However, in its general definitions, the Act simply states that "the term 'navigable waters' means the waters of the United States, including the territorial seas."
To make a long, legally screwed-up story short, the U.S. Supreme Court issued a muddled split 4–1–4 ruling in Rapanos v. United States (2006). In his plurality opinion, Justice Antonin Scalia argued:
In sum, on its only plausible interpretation, the phrase "the waters of the United States" includes 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." See Webster's Second 2882. The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall. The Corps' expansive interpretation of the "the waters of the United States" is thus not "based on a permissible construction of the statute."
However, Justice Anthony Kennedy in his concurring opinion offered a broader "significant nexus" test for defining what constitutes "navigable waters" under the statute. For example, under that test, wetlands "either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as 'navigable.'"
EPA regulators have, in some sense, been seeking to navigate between those two tests ever since. The Obama and Biden administrations have favored Kennedy's "significant nexus" test to justify broader regulations, while the Trump administration preferred Scalia's definitions as a way to narrow the scope of the regulations. In February, the Senate Republican Conference sent a letter to the Biden administration decrying the new WOTUS rules' reliance on the "ambiguous 'significant nexus' standard" as an effort "to federalize waters in a land grab that arguably surpasses its [Obama administration] 2015 predecessor."
In March, a joint resolution of Congress nullifying the Biden administration's new WOTUS definition was passed. President Joe Biden vetoed it.
The Supreme Court will hopefully offer some clarity on what constitutes the waters of the United States under the Clean Water Act with a ruling this spring that permanently halts this attempted federal land grab in the case Sackett v. EPA.
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