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 The
goal of WOTUS is to keep the waterways in the United States clear of
pollution and other contaminants. This idea is a great one, as
keeping America’s waterways clean is a noble goal. Why is it then,
that some people are against WOTUS? The answer lies within its
implementation and guidelines.
Critics of WOTUS claim one of their biggest gripes with it is the
lack of clear language. The Farm Bureau states, “we have fought for
clear rules that farmers and ranchers can follow as they work to
care for our natural resources.” A lot of wording in WOTUS tends to
be quite vague, leading to the potential for mistakes to be made
when interpreting how it is to be implemented in day-to-day
situations. Most anything that occurs within a WOTUS requires a
permit, and these permits can be very expensive and time consuming
to get a hold of. Without these permits, however, farmers can be
held liable for breaking the Clean Water Act (CWA). “A simple
misjudgment by a farmer in determining whether a low spot is or
isn’t WOTUS could trigger huge civil fines and even criminal
punishment.” A law with repercussions such as these should have
clear language so everyone it applies to can be sure they are not
breaking it.
One specific issue regarding
WOTUS’s vagueness via language comes from its lack of a definition
of the word ‘navigable.’ The new WOTUS rules, effective November 27,
2023, still fail to give this term a definition. According to Iowa
PBS, “The National Association of State Departments of Agriculture
felt the new rules failed to establish clarity for farmers including
what is and is not ‘a navigable water’.” Most dictionaries define
the term navigable as a waterway that boats and ships can traverse.
This definition may sound specific enough, but without a legal
definition for this law specifically, there is no way to truly know
how the EPA defines ‘navigable,’ and therefore how they determine a
‘navigable waterway.’ To better understand the tense situation
around WOTUS, it is important to understand its history and how it
got to where it is today.
On October 18, 1972, the Clean Water Act was signed into law.
According to the EPA’s website, “the CWA aimed to restore and
maintain the chemical, physical, and biological integrity of the
nation’s waters.” Among the many standards and mandates that 1972’s
CWA put into place, one of them set a goal of removing pollutants
from “navigable waters” by 1985. Over the following decades, several
pieces of legislation were passed amending the CWA. Some of these
pieces of legislation included parts addressing state funding for
cleaning waterways and cleaning up the Great Lakes.
It was in these decades that the CWA faced many legal challenges as
well. One of these legal challenges included the Supreme Court case
Rapanos v United States. In the ruling of this case, the Supreme
Court decided “if a water body had a ‘significant nexus’ to a
federally protected waterway… then it was connected and fell under
federal jurisdiction.” This mostly applied to wetlands, defined as
“a relatively permanent body of water connected to traditional
navigable waters.” When determining a ‘significant nexus,’ it must
be determined if the WOTUS performs certain physical, chemical, and
biological functions, among other qualifications. This became one of
the key issues for the opponents of the CWA.
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The CWA’s controversy has
continued into 2023. Back in May, in the case of Sackett v EPA, the
Supreme Court decided that only “wetlands with a continuous surface
connection to bodies that are waters of the United States” are going
to be federally protected. This decision also removes the term
‘significant nexus’ when determining if a WOTUS is federally
protected. Proponents of the CWA state this is detrimental in
keeping a WOTUS clean. Whether or not these new regulations will
make it easier for America’s farmers and ranchers to follow the CWA
remains to be seen. From what has been published, however, it seems
that many farmer and rancher organizations are not very happy about
this ruling either. The ruling is being called the final WOTUS
ruling, but people on both sides of the issue seem to still have
their problems with it.
Judges in both Texas and Idaho
have temporarily halted the new WOTUS rule in their states. Some
opponents of the new rule state the EPA should rewrite WOTUS to
create more clarity for farmers when navigating its regulations. The
EPA, on the other hand, made a public statement vowing to continue
to fight to provide clean water to the people of the United States.
Seeing how much dislike both sides have for this ‘final’ WOTUS rule,
it seems highly unlikely that these new regulations will truly be
final.
Resources:
1.
https://www.fb.org/issue/regulatory-reform/waters-of-the-united-states
2.
https://www.iowapbs.org/shows/
mtom/market-package/clip/8944/wotus-rule-revised
3.
https://www.epa.gov/laws-regulations/history-clean-water-act#:~:text=The
Federal Water Pollution Control,Clean Water Act (CWA)
4.
https://www.pbs.org/newshour
/nation/farmers-ranchers-think-epa-clean
-water-rule-goes-far
5.
https://eelp.law.harvard.edu/2017/09/
defining-waters-of-the-united-states-clean
-water-rule/#:~:text=Justice%20Alito%20delivered%20the%20court's
6.
https://wildlife.org/new-wotus-rule-leaves-american-wetlands-vulnerable/#:~:text=The%20May%202023%20SCOTUS%20decision,are%20to%20be%20federally%20protected.
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