Supreme Court

Let the WOTUS Wars Commence

The EPA and Supreme Court set the stage for important legal decisions on the scope of the Clean Water Act.

|The Volokh Conspiracy |

Last week, the Environmental Protection Agency (EPA) published its proposed rule to redefine the meaning of "waters of the United States" (WOTUS) under the Clean Water Act in the Federal Register.

The WOTUS rule is important because it determines the scope of the federal government's regulatory jurisdiction over waters and wetlands under the CWA. The new definition was initially proposed in December, but was not published until now. There is always some delay between the release of a proposal and its publication, but this delay was longer than usual, likely due to a combination of factors, including the holidays and government shutdown.

With publication of the proposed rule, the 60-day comment period has begun. Expect there to be lots of comments, as many environmentalist organizations object to the proposed definition, while many industries and land rights groups support the effort. Both sides will be seeking to seed the comments with arguments for and against revising the WOTUS definition in anticipation of eventual litigation over the final rule. The comment period ends on April 15.

While the Trump Administration's WOTUS rewrite won't reach the courts for awhile, other WOTUS-related litigation continues, including legal challenges to the Obama Administation's WOTUS rule and the Trump Administration's attempt to suspend the Obama WOTUS rule pending the rewrite. Both the Obama definition and the Trump suspension have faced some trouble in court, and litigation is ongoing.

This morning, another front in the WOTUS wars opened as the Supreme Court accepted a petition for certiorari in County of Maui v. Hawaii Wildlife Fund, which presents the question whether the CWA requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater. The Maui case is one of several cases raising the broader issue of whether the CWA may reach pollution that travels through groundwater—effectively treating the groundwater as a "conduit" for covered point-source pollution. (Another, still pending at the Court, is Kinder Morgan Energy Partners v. Upstate Forever.)

Maui will have important implications for the scope of federal regulatory authority as well. Indeed, how the Supreme Court resolves the Maui case may preview how the justices will approach the eventual litigation over WOTUS. But we'll have to wait a little for that, as the Court will not hear arguments in this case until the fall.

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  2. Isn’t this really just one line of battle in the bigger war over just how broadly or narrowly to read the Commerce Clause as a grant of authority to Congress? When WOTUS is read to include navigable waterways, there is a very clear nexus to interstate commerce. The farther away from navigable waterways the definition of WOTUS reaches, the more strained and emphemeral the nexus becomes. And it all started with Wickard v. Filburn, one of a long list of very bad decisions that essentially read any requirement of such a nexus out of the Commerce Clause and, in the process, emasculated federalism under the Constitution, replacing it with an imperial central government. I’m waiting for the day when overruling Wickard v. Filburn becomes a reasonable prospect.

    1. It isn’t widely known that the Great Depression was actually caused by some guy deciding to use the outhouse behind his house instead of going into town to use one in town general store. Do you want that to happen again?

    2. “very bad decisions that essentially read any requirement of such a nexus out of the Commerce Clause”

      There is an element of nexus in the commerce clause? I thought is required actual interstate commerce. Silly me.

      1. Nope, SCOTUS has read that out of it too.

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  3. BTW, it’s hard to fathom how the movement of groundwater in Hawaii, or even the flow of rivers in Hawaii, can have any conceivable effect on interstate commerce. It’s not as if any such water flow can ever possibly be traced into another state, or even to another country.

    1. I learned something today (IANAL!), thanks to you. I had always thought the “navigable waters” phrase was actually in the Constitution, but it sure looks like it was just made up from the Commerce Clause. Shiver me timbers!

  4. Man, if only there was some sort of competent [in the term of art legal sense] body with the power to decide the meanings of terms like that as a matter of law…

    1. It would be better to just give Congress the power to regulate matter that is in the quantum foam, and we won’t have to worry about these word games. Amendment XXVIII anyone?

      1. Given the exceedingly poor record of competence shown by Congress generally, I’d much rather that we pass a Constitutional Amendment withdrawing from Congress all authority beyond national defense (and paying for national defense), and specify that any time Congress spends in Washington not dedicated to national defense can only be dedicated to political fund raising and similar circle jerks.

        1. Fool. national defense is the root password to the Constitution. Once you stretch it to offensive weapons or building The Wall to keep them furriners at bay, what prevents including global warming to keep them furriners at bay, universal health care to keep the locals at bay, nationalizing the steel industry, and socialism in general?

          1. Walls have a logical and long standing history of use as military defenses. For example, Hadrian’s wall and The Great Wall of China.

            1. Whoosh!

            2. Military defense? Is Mexico massing troops on the border?

      2. give Congress the power to regulate matter that is in the quantum foam

        They already regulate and fine and jail based on ideas of things that may or may not actually exist.

        1. Congressman Dr. Manhattan: I have regulated fines on subjects so tiny and fast they can hardly be said to have occured at all.

  5. What is the source for Congress’s power to regulate water quality in navigable waters, as opposed to just the navigability of them and navigation in them?

    1. Not sure, but ‘interstate commerce’ or ‘general welfare’ will suffice for this as for everything else

    2. I believe that Congress relied upon its authority to regulate interstate commerce as the constitutional basis for both the Clean Air Act and the Clean Water Act. And, within limits, I don’t particularly object to Congress regulating water quality in navigable waterways – we certainly don’t want the water quality to decline to the point where rivers catch on fire, and we don’t want Illinois and Iowa and Missouri pouring pollutants into the Mississippi so that residents of Tennessee, Arkansas, Mississippi, and Louisiana can’t eat the fish or even stand the stench. The difficulty is in determining at just what point the connection between a give water source and interstate commerce becomes so attenuated that Congress has exceeded the legitimate boundaries of its power to regulate interstate commerce. To me, when the EPA tries to demand a Federal permitting process in order for a rancher in Montana or Wyoming to excavate a stand-alone stock pond, that is clearly over the line.

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