Last May, the EPA and the US Army Corps of Engineers finalized the Waters of the United States (WOTUS) rule to better define elements of the Clean Water Act, namely what counts as the country’s “navigable waters.”
Because of two recent Supreme Court cases, there was confusion regarding the jurisdictions of the EPA and the Corps:
The Solid Waste Agency of Northern Cook County (SWANCC) sued the Corps for denying a permit to the Chicago-area consortium of cities and villages that sought to develop a landfill for nonhazardous waste at a retired sand and gravel mining site. The parcel had since its retirement evolved into ponds used by migratory birds and the Corps denied the permit citing “isolated waters” as regulated wetlands under the Clean Water Act. The Supreme Court decision upheld SWANCC on the basis that the Corps’ jurisdiction did not extend to ponds that are not adjacent to open water.
In 2006, the Supreme Court heard and issued a decision in Rapanos v. United States. The case challenged federal jurisdiction in regulating isolated wetlands under the Clean Water Act. Rapanos was a developer who wanted to fill with sand and without a permit a wetland he owned to prepare for a mall being constructed. EPA stopped the project. Rapanos claimed his land was up to 20 miles away from any navigable waters of the U.S. and, therefore, EPA had no jurisdiction. Rapanos lost a civil case against him resulting in millions of dollars in fines and he appealed to the Supreme Court.
U.S. Supreme Court Justice Anthony Kennedy wrote in his Rapanos opinion that the Clean Water Act confers federal jurisdiction on traditional navigable waters and all other waters having a “significant nexus” to navigable waters. There was no majority opinion in Rapanos so Justice Kennedy’s concurring opinion set the precedent.
The rule aimed to eliminate this confusion. Here is what it does:
· Clearly defines and protects tributaries that impact the health of downstream waters. The Clean Water Act protects navigable waterways and their tributaries. The rule says that a tributary must show physical features of flowing water – a bed, bank, and ordinary high water mark – to warrant protection. The rule provides protection for headwaters that have these features and science shows can have a significant connection to downstream waters.
· Provides certainty in how far safeguards extend to nearby waters. The rule protects waters that are next to rivers and lakes and their tributaries because science shows that they impact downstream waters. The rule sets boundaries on covering nearby waters for the first time that are physical and measurable.
· Protects the nation’s regional water treasures. Science shows that specific water features can function like a system and impact the health of downstream waters. The rule protects prairie potholes, Carolina and Delmarva bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands when they impact downstream waters.
· Focuses on streams, not ditches. The rule limits protection to ditches that are constructed out of streams or function like streams and can carry pollution downstream. So ditches that are not constructed in streams and that flow only when it rains are not covered.
· Maintains the status of waters within Municipal Separate Storm Sewer Systems. The rule does not change how those waters are treated and encourages the use of green infrastructure.
· Reduces the use of case-specific analysis of waters. Previously, almost any water could be put through a lengthy case-specific analysis, even if it would not be subject to the Clean Water Act. The rule significantly limits the use of case-specific analysis by creating clarity and certainty on protected waters and limiting the number of similarly situated water features.
But, as one can easily expect, Republicans have been consistently opposed to the WOTUS rule. And today, the House held a vote on a bill to express congressional disapproval of the bill.
It passed 253 to 166.
One Republican—Chris Smith (NJ-04)—voted with Democrats against it.
And then 12 Democrats joined the GOP in voting for it:
Jim Cooper (TN-05)
Jim Costa (CA-16)
Henry Cuellar (TX-28)
John Garamendi (CA-03)
Gwen Graham (FL-02)
Collin Peterson (MN-07)
Kurt Schrader (OR-05)
David Scott (GA-13)
Terri Sewell (AL-07)
Marc Veasey (TX-33)
Filemon Vela (TX-34)
Tim Walz (MN-01)