by Greg Walcher, E&E Legal Senior Policy Fellow
As appearing in the Daily Sentinel

The infamous Hatfield-McCoy family feud lasted from the Civil War through the trial of Johnse Hatfield in 1901, finally ending only by an old-fashioned public hanging in Pike County, Kentucky. More than a dozen family members and friends had been murdered, including a New Year’s Eve Massacre, and a pitched battle between two small armies at Grapevine Creek. In 2003 a “formal truce” was signed by 60 descendants of both families, settling it once and for all. Reo Hatfield said, “Sometimes you have to fight, but you don’t have to fight forever.” He ought to tell that to the politicians and lawyers battling over federal control of water for the last 50 years.

Next week, the U.S. Supreme Court will decide whether to hear a case that provides — finally — a chance to clarify the definition of “Waters of the United States” (WOTUS). Western leaders, environmental activists, lawyers and landowners across the country have argued about “WOTUS” for decades. Yet the need for another definition is peculiar because Congress defined it clearly in the Clean Water Act of 1972, which created federal jurisdiction over “Navigable Waters of the United States.” I may be all alone, but I still refuse to use the term “WOTUS.” I call it “NWOTUS,” because that is what the law says.
If water is not navigable, Congress did not intend to claim federal jurisdiction. That’s because water belongs to the states, not the federal government, unless it involves interstate commerce. That necessarily means “navigable” waters, the term used in the Clean Water Act. That landmark anti-pollution law gave EPA and the Army Corps of Engineers authority to regulate activities that affect “jurisdictional waters.” The Act has been amended four times since 1972, yet Congress never changed that clear direction. It intended to stop pollution of navigable waterways, which involve interstate commerce, and asserted no federal authority over smaller bodies of non-navigable state waters. The Constitution gives Congress no other basis for regulating state waters.