Battle ensues over which types of water the federal government can regulate

SIOUX CITY (KTIV) - Decades ago, Congress gave the federal government the power to regulate the “Waters of the United States,” also known as WOTUS.

But Congress never clearly defined what constitutes those waters, leaving a void that the courts and the public have wrestled with ever since. The Biden administration has proposed its version of the rule, which would give them oversight over water on both public and private land.

Pretty much everyone agrees that water like the Missouri River and the Big Sioux River are under the purview of the federal government. But what about water on private land? And what about water that isn’t always visible to the naked eye? That’s the debate that’s been raging in the background.

“Well under the Trump administration, navigable waters meant that it was actually a river or a lake or whatever, not a pond, or little water in the ditch or so. I mean, this is very extreme,” said Rep. Randy Feenstra, (R) Iowa.

Expert Kristine Tidgren says the Trump Administration crafted the rule so that only water that had a “continuous surface connection.” In other words, standing or running water that can be traced to another body of water, would be regulated.

In order to better protect the environment, she says the Biden Administration rule would give the government purview over any water that has a “significant nexus” to other nearby water. Put another way, the Biden rule may cover things like wetlands and marshes that sometimes fill with water and drain to other parts of the water system.

“And so that’s really the biggest problem is just the lack of certainty with any of these rules. It’s really difficult to draw a black and white line, a bright line test, just because of the complexity of the question,” said Tidgren, the director of the Center for Agricultural Law and Taxation at Iowa State University.

Tidgren says farmers worry because they may need costly permits to build on land currently covered by water, and be extra careful in which types of chemicals get near ponds, ditches and streams. But the federal government argues the rule is necessary to protect all of our waterways, which are increasingly interconnected.

Complicating matters even more? Right now, the U.S. Supreme Court is considering whether the “significant nexus” test is constitutional. Even if the Biden rule is made law, experts say it will also be challenged in court, likely leading to more uncertainty for some time.

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