What are the waters of the United States?

What are the waters of the United States? Justice Sonia Sotomayor asks this with the introduction of her opinion for the United States Supreme Court decision, “National Association of Manufacturers, Petitioner, versus Department of Defense, et. al.” Defining what constitutes the waters of the US has been a contentious issue for the US government for decades.

The Environmental Protection Agency, with the Army Corps of Engineers, tried to define the waters of the US, and between the two agencies issued a Rule in June 2015, the Waters of the United States Rule, commonly referred to as the WOTUS Rule. This defined what waters were regulated. North Dakota led a challenge of the rule within months, and the US District Court for North Dakota found that North Dakota and thirteen other challengers would likely succeed on their claims, “including that the rule violated the congressional grant of authority to the agencies under the CWA {Clean Water Act} and that it appeared likely the EPA failed to comply with Administrative Procedure Act (APA) requirements in promulgating the rule” {Federal Register Vol. 82, No. 143 /Thursday, July 27, 2017 / Proposed Rules.}

A few weeks later the ruling was upheld by Sixth Circuit Court of Appeal, but stayed. The argument was not the constitutionality of the Rule, or whether or not it was too broad. The argument made by the petitioners, the National Association of Manufacturers, was that the EPA erred in making the Rule, and because of that the WOTUS Rule was null. NAM argued that according to the Clean Water Act, the Rule was not within the government’s purview and was administrative, as was first argued in North Dakota. The argument offered by the US government—the EPA and the Army Corps of Engineers—was that the Rule was within their purview of regulatory promulgation and had to be challenged first in a Court of Appeal. Late in January of this year, the SCOTUS ruled 9-0 that WOTUS fell outside the rule making process, and was invalid on that basis. The case was remanded back to US District Courts.

For the full story, see the print version of the Devils Lake Journal for March 21, 2018