The Environmental Protection Agency (“EPA”) and U.S. Army Corps of Engineers ("USACE") have set in motion the process for rescinding the rule defining "waters of the United States" (“WOTUS”) that was approved by the EPA in 2015. The WOTUS Rule was intended to clarify the definition of "waters of the United States" being applied by judges across the United States in line with Justice Kennedy's plurality opinion in Rapanos and the definition set forth in the Clean Water Act ("CWA"). The CWA defined waters of the United States as navigable waters, leaving significant room for interpretation. This definition is central to defining the scope of the CWA because it is those "waters of the United States" which are subject to the provisions and requirements of the CWA.
The EPA and USACE are looking to revise WOTUS to match the language Justice Scalia used in his dissenting opinion in Rapanos to define "waters of the United States." Justice Scalia stated that the EPA should have jurisdiction over “only ‘relatively permanent, standing or continuously flowing’ waters or wetlands with a surface connection to navigable waterways”. Some industrial, agricultural, and business entities are supportive of this narrower definition, but it may not provide adequate protection. Critics of the WOTUS rule are concerned that the current definition of waters of the United States exceeds Congress's authority and interferes with states' authority to manage intrastate waters. Traditionally, Congress exercises authority over interstate matters while states exercise authority over intrastate matters.
Opponents to the WOTUS Rule argued that the Rule continues to confuse farmers, ranchers, and landowners about whether certain water sources were considered waters of the United States and are therefore subject to the CWA. The most contentious debate on what waters are included in WOTUS centers on 2 million miles of headwaters and streams that flow only part of the year and 20 million acres of wetlands that are not connected directly to large waterways. According to the president of the Natural Resources Defense Council, Rhea Suh, these waterways affect the drinking water sources of 1 in 3 Americans.
It is vital that the EPA, U.S. Army Corps of Engineers, and the current administration as a whole, consider the long and short term impacts of pollution on our water, a resource so essential to our economy and security.