While imperfect, the proposed WOTUS rule goes a long way to address the practical and constitutional issues presented by the government’s current WOTUS practices. We strongly support adoption of the proposed rule, but propose some minor, but significant, changes.
The Supreme Court has noted that the Clean Water Act (CWA) is bound by Congressional authority to regulate interstate commerce—e.g. the regulation of navigable rivers lakes and streams. In practice, the government’s current definition of WOTUS has been used to justify federal regulation of virtually every ditch, pond, or rain puddle in the country, sometimes encompassing dry land that is miles from the nearest traditional navigable water. The proposed WOTUS rule deliberately makes efforts to bring the CWA back within Congress’ authority under the Commerce Clause.
One of the best parts of the proposed rule is that it does away with the “significant nexus” test for determining whether a property contains WOTUS. Under the significant nexus test, there is often no way to determine whether a property miles from any navigable water contains WOTUS without undergoing multiyear administrative process that requires extensive testing, studies, and expert evaluations. Several Supreme Court Justices have questioned whether the significant nexus test violates due process because it makes it impossible for an ordinary person to know whether moving dirt on their property will violate the CWA. The proposed rule does away with the significant nexus test implicitly by not including it in the text of the rule. We propose that the rule make this exclusion explicit.
One of the primary problems with the old rule was that it took a broad view of the term “tributary,” thus potentially extending federal jurisdiction over every ditch, rut, or storm pipe through which water might occasionally flow. The proposed rule addresses these concerns by excluding from the term “tributary” storm drains, ditches, and streams that only flow as a result of precipitation. We suggest that the rule go further by requiring that any tributary have a continuous surface-water connection to a traditional navigable water.
The agencies asked for opinions on whether groundwater should be included in WOTUS. We conclude that because the text of the CWA refers to “navigable waters,” and groundwater cannot be navigable, groundwater should not be included in WOTUS.
The CWA exempts prior-converted cropland (farms that were in active use at the time the CWA was passed) from WOTUS. Under the existing rule, this exemption is permanent. The proposed rule would reinstate WOTUS status for any prior-converted cropland that is not farmed continuously for five consecutive years. We oppose this change because it is inconsistent with other federal regulations dealing with prior converted cropland and could cause confusion for farmers.