To understand the Waters of the United States (WOTUS) controversy, one must understand the significance of the term itself. The federal Clean Water Act (CWA) prohibits the “discharge” of any pollutant without a permit and defines discharge as “any addition of any pollutant to navigable waters from a point source.” A discharge can be anything from releasing sediment to changing the temperature of water. Consequently, agriculture – and every other industry – cares about whether the waters under its influence are “waters of the United States.”
The CWA defines “navigable waters” as “the waters of the United States” but does not define what that means. Some argue Congress meant for the broadest interpretation of the term; others argue it should be limited to the traditional understanding of a water body capable of supporting boat traffic of some kind.
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EPA, the Army Corps of Engineers (Corps), and the parties they regulate have struggled to define WOTUS since the implementation of the CWA. This led to a number of United States Supreme Court cases. In U.S. v. Riverside Bayview Homes, the Court held Congress meant “navigable” to be broader than the traditional definition, and found that wetlands – definitely not navigable in the normal sense – were regulated by the CWA. In Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, the Court held a water body must have some connection with traditionally navigable waters to be within the CWA. The Court hoped to resolve the controversy by its 2006 decision in Rapanos v. U.S. Army Corps of Engineers, which dealt with a wetland (as in Riverside) and its connection to navigable waters (as in SWANCC). Unfortunately, five separate opinions were written in the case, with none of them gathering a majority of the justices.
In light of Rapanos, agencies continued to struggle with the WOTUS definition. Hoping to provide clarity and certainty to potentially-regulated parties, EPA and the Corps of Engineers proposed the WOTUS rule. The rule focused on Justice Kennedy’s opinion in Rapanos, stating a water body should have a “significant nexus” to traditionally navigable waters for CWA jurisdiction. In the 88 page rule document, EPA and the Corps explained a number of factors the rule would examine to determine whether a significant nexus existed. Some groups argued the rule provided clarity and properly fulfilled the intent of the CWA; others argued the significant nexus test was vague and could be used to extend federal regulatory authority to almost any water.
Vigorous debate over the rule continued throughout its comment period with 698,836 comments submitted before comments closed. Several agency sources stated EPA and the Corps intend to announce the results of their rulemaking in early- to mid-2015. The intensity of the recent debate suggests the controversy is unlikely to end with the announced rule, with many arguing the new Congress should intervene. In any case, farmers and ranchers should continue to follow the progress of the rule to determine what compliance steps, if any, will be needed.