Water Water everywhere but not a settled piece of law anywhere to drink

To be clear , clean water is a great concept, even if some federal courts have rules clean drinking water isn’t a constitutional right. To address this, the federal government has long tangled with what waters it controls and what waters are left to the states to control.
Waters of the United States aka “Wotus” has become so familiar in some ag law circles if it was a brand name it would have lost its trademark status a while go, like Kleenex, Koolaid, air fryer, Allen wrench, aspirin, lanolin, and escalator. It seem like every national Ag law conference I have attended since before law school was completed has one to four sessions on Waters of the United States. Those seminars have been mostly policy debates and little more than observational comments over clear pathways forward or practice based advise to haul back to clients. It has not been an easy solve.
To start with , some Waters of the US is are bodies of water and rivers that attract national attention and impact the nation. I would use their names but by the time this goes to print, who knows what they would be called. A good example, the big river in the middle of the US is a water of the United States.
For awhile, case law supported the idea that not only is the big muddy ribbon of water a water of the United states, but also all the waters that are significantly in a nexus with that water of the US are also subject to fed rules. Good luck getting that phrase parsed into a digestible, easy to understand standard. The government took water to mean soil with water in, aka swamps, that then eventually drain to an aforementioned Water of the US, were subject to the WOTUS rules. This was around 2015 or so.
More recently, ala 2023, the US Supreme Court said significant nexus was insufficient by virtue of being overly broad. That court said wetlands that don’t have surface swamp water connecting the swamp to the river are not WOTUS. But don’t worry, only about ½ of the states of this nation are bound by that and the others are still back on the 2015 vision.
All farm occupants and former farm occupants might be pondering standing water in a puddle in hay field or a ditch that dries up in a week or a field that used to have water but thanks to the insertion of perforated drainage tile, no longer even really hints at every having had surface water, let alone connected surface water. Don’t worry, it is complicated.
Apparently science and hydrology has no place in policy, as showing how a temporary surface water is connected to the WOTUS wasn’t inserted by Congress therefore the theory goes they must have in their sage and august reasoning, decided it wasn’t a factor.
The latest attempt at putting lip stick on the water pig is to narrow up what the feds can do to only relatively permanent waters that flow year round or at least during the wet season and that flow has to touch a true WOTUS. If you are just a guest star on the WOTUS review, you don’t get a residual check and you don’t get regulated by the feds. Also, a ditch and or a tile system isn’t a WOTUS, regardless of the flow. Why carve that out of the rule? For the “I State” vote as grain country relies upon drainage. Temporary or ephemeral waters are out. That’s a win for the west where gully washers and dry creeks are a bit more of feature than bug like maybe the Midwest views them. Everybody in ag wins with the further exemption for prior to 1985 drained lands as they need to be abandoned and back to wet land status. That means acres that are now enrolled in CRP or haying that are getting tacky and muddy with changes in drainage are not at risk of federal regulation.
Did you catch that line about “wet season?” I would hazard guess what people in Oregon consider a wet season is far different than what the folks in western Kansas attribute a stretch of wet weather as wet season is. It’s a big country, one blanket rarely keeps everybody warm, which is a great argument for lot of little state rules instead of a one size fits all concept.
Who wins? To the surprise of no one, Lawyers. Lawyers for the government who can play gotcha, lawyers for farmers who advise on which rules are in place at any spot, lawyers who are lobbyists to get the rules changed ,lawyers who are politicians to be lobbied ,and lawyers who are law professors who want killer property law exam questions.
Who doesn’t win? Landowners who don’t want to pay lawyers or run afoul of the law and citizens who want clear common sense regulation over shared resources like water. Where can you install drainage, insert a fence or build an improvement are important concepts and so is safe clean drinking water. Running to the federal government for permission is a monetarily taxing event and the number of lawyers and advisors available to the farm operator who will take this work is less and less each passing year. Also, cancer treatment with current healthcare systems are also taxing.
Clear as a mud yet? That’s okay, we have an effective government focused on real world issues that impact all of us at all levels of governance. Care for a glass of water from this randomly selected waterway?