<img height="1" width="1" style="display:none" src="https://www.facebook.com/tr?id=915327909015523&amp;ev=PageView&amp;noscript=1" target="_blank"> Skip to main content
You have permission to edit this article.
The View from White Oaks

Lauren R. Stevens: WOTUS — Waters of the United States of America

East Sherman

Even streams that run dry occasionally deserve protection, writes Eagle columnist Lauren Stevens.

You’ve heard of POTUS (president of the United States) and SCOTUS (Supreme Court of the United States), but you may not have heard of WOTUS — waters of the United States. Well, SCOTUS heard arguments on WOTUS in October and might soon deliver a ruling on what sorts of wetlands are subject to federal regulation.

The Clean Water Act, passed by Congress over President Richard Nixon’s veto in 1972, says that anyone seeking to discharge pollution, to dredge or to fill the waters of the United States would need a permit. The proponent has to make a case and is subject to restrictions.

Chantell and Michael Sackett purchased land that turned out to be soggy, 300 feet from Priest Lake in Idaho. Since they wanted to build a house there, they dumped sand and gravel on the property — without a permit. The feds told them to stop. They lost in lower court on the grounds that their wetlands were related to navigable water. They appealed to the Supremes. So, it became another of the many significant cases now before this conservative court.

Prior to 50 years ago, the federal government was not involved in water quality. Industries and individuals dumped whatever they liked into rivers — unless your state, like Massachusetts, had its own regulations. The Clean Water Act prohibited dumping pollutants into “navigable waters” without a permit, defining that term to include “all waters of the United States.” At lot is at stake with the definition of WOTUS for developers, farmers, ranchers — and individuals like the Sacketts.

And for the public and the environment. Many people rely on rivers for clean drinking water. Intermittent streams only running part of the year nevertheless affect the waters they enter. Swamps, bogs, marshes and vernal pools provide wildlife habitat and store water to reduce flooding. Even man-made wetlands can provide those functions. You can’t say that rivers are clean if polluted tributaries are running into them. You can’t dismiss the functions that wetlands play in cleaning water. Well, if you are a Supreme Court justice, you have a chance.

In the 2006 case of Rapanos v. United States, two conservative justices suggested different tests. Justice Antonin Scalia held that a wetland is only subject to the act if it has ”a continuous surface connection with a relatively permanent body of water.” At September’s hearing, a group representing water regulators and managers said that definition would rule out most of the nation’s wetlands.

In Rapanos, Justice Anthony Kennedy suggested as a test whether the wetland is “in reasonable proximity to other waters of the United States,” referred to this as the “significant nexus” rule. SCOTUS sent the case back to the appellate court rather than deciding.

Administrations also juggled definitions. George W. Bush’s Environmental Protection Agency issued a rule excluding most seasonal streams and isolated wetlands. The Obama administration replaced that with a broader rule. The Trump administration’s 2020 version reverted to Scalia’s. The present administration has broadened the scope once again.

Court-watchers speculate that this SCOTUS could side with Scalia’s test or go even narrower. It might seem odd, but in a polarized society, which party you belong to seems to determine what might otherwise be a scientific decision. “Navigable waters” are part of water systems, not somehow isolated. It seems reasonable to seek a permit and be guided by restrictions if you are altering a public good, water.

At least, that’s how it looks from the White Oaks.

Lauren R. Stevens is a regular Eagle contributor and a Williamstown Conservation Commissioner.

Get up-to-the-minute news sent straight to your device.