WOTUS replaced with the Navigable Waters Protection Rule

A final rule defining and clarifying the scope of  “waters of the United States” federally regulated under the Clean Water Act has been published. This definition will increase the predictability and consistency of Clean Water Act programs, according to the Department of the Army, Corps of Engineers, and Environmental Protection Agency. Pictured here: Wildhorse Creek Wild and Scenic River in Oregon.

Remember when you were a kid and you would calculate whether to ask your mother or your father depending on the answer you wanted? That is exactly what the Biden administration did with the definition of “waters of the U.S.” (WOTUS) under the Clean Water Act (CWA). 

As of Sept. 13, there are two opposing court decisions regarding the effect of the Trump administration’s definition of WOTUS, followed by a Biden administration announcement picking which court it wanted to follow. On March 2, the 10th Circuit Court of Appeals ruled it did not have the jurisdiction to stop the enforcement of the former President Donald Trump WOTUS rule until there was a ruling on the merits of the case or President Joe Biden had legally issued a new rule. In stark opposition, on Aug. 30, a federal district judge vacated the enforcement of the Trump rule even before the Biden administration had a new rule to put in its place. 

Thus, in contrast to the 10th Circuit’s decision, with the stroke of a pen, the Arizona judge vacated the application of the Trump rule throughout the nation. The decision is very frustrating. Normally, the previous regulation remains in place until it is replaced. However, instead of simply dismissing the case and sending the regulation back to the Environmental Protection Agency (EPA) and Army Corps of Engineers to revise, the Arizona judge, appointed by former President Barack Obama, issued a national vacatur of Trump’s WOTUS definition. 

Her ruling brings up a major issue—should a federal district judge in Arizona, who does not have any jurisdictional authority outside of the state of Arizona, have the power to nationally end a legally adopted rule? Judge Rosemary Marquez’s ruling once again muddies the waters and allows the EPA and Corps of Engineers to arbitrarily enforce a law that could result in thousands of dollars in fines and jail time to a violator. 

The CWA was passed in 1972 to protect WOTUS by making it illegal to discharge a pollutant into a WOTUS unless a permit was obtained. However, the law became mired in controversy when the federal agencies began charging people with CWA violations for discharging pollutants in waters that were never intended to be regulated, including irrigation ditches, stock ponds and isolated and seasonal wetlands. 

The lack of a tangible statutory definition for a WOTUS has generated hundreds of cases to ascertain the span of the federal government’s jurisdiction. In turn, the CWA has a history of being weaponized to prevent development projects from moving forward and harassing farmers and ranchers. 

Also, it is important to note that just because a body of water may not be defined as a WOTUS, does not mean that it is not protected. All waters not directly under the federal government’s jurisdiction usually fall into the state’s jurisdiction. For example, the Wyoming Department of Environmental Quality is the state agency tasked to protect Wyoming’s water quality. 

By killing the Trump CWA rules, we are once again left in an impossible position because no one actually knows what a WOTUS is. Does the federal government have jurisdiction over your irrigation ditch? How about the bog down the street? In its pleadings before the court, the EPA identified 333 projects it believed it would have had jurisdiction over prior to the Trump rules. 

Disturbingly, the Trump rule has only been in place for less than a year. Thus, Washington, D.C. will again arbitrarily insert itself into our lives. The situation surrounding the national demise of the Trump CWA rules begs an even bigger question. How does a single judge in Arizona have the power to invalidate legally enacted regulations for the entire nation? By allowing district court judges to invalidate regulations on a national scale, we are giving an undemocratically elected judge the ability to affect people outside of their jurisdiction. 

It is particularly egregious when the 10th Circuit Court came to the opposite result. This unprecedented power encourages the worst kind of forum shopping in which organizations target specific judges to advance their radical agendas. In the past couple years, the Supreme Court has questioned the authority of district courts issuing nationwide injunctions. The hope is the Supreme Court finally puts an end to this form of radical lawmaking and forum shopping from the judge’s bench. — Conner Nicklas, Budd-Falen Law Offices LLC 

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