In 1998, when Kansas sued Nebraska over its High Plains Aquifer use the Supreme Court of the United States didn't even mention the word "groundwater" and although it never appeared in the initial 1943 Republican River compact the Court ruled its use affects flows.
Throughout its history the US Army Corps of Engineers has had purview over water that flows into bodies that can support navigation and in 2014, through the US Environmental Protection Agency and the Clean Water Act, the Obama White House moved to identify more closely the sources of non-point pollution. Despite a judge's ruling EPA went forward with new federal rules protecting small streams, tributaries and wetlands. Waters of the United States or WOTUS legislation seeks to give authority to the EPA to use some teeth to enforce the rights of people downstream to have clean water even from some sources that the US Geological Survey has already identified as impaired.
How waters flow, how they collect, how waters are managed are not matters which should be controlled by the U S Supreme Court. Individuals having no knowledge of the principles of hydrology, no experience in creating water management policy and no technical training in water management have visited the country with a new mandate on water law. With little attention to the facts of the case (a ditch filled with water next to a road), the Supreme Court made water law and created its own water policy. The Court has historically opined that the Court must not be in the business of judicial policymaking. This includes interpreting a regulation or a statute in such a way that the Court is reconfiguring the technical enforcement powers underlying a regulation. [David Ganje: The world of court policymaking]Today, Republican welfare farmers are the real ecoterrorists who hate subsidies unless they benefit from them so Earth haters and their toadies cry government overreach while WOTUS architects in the EPA regroup for another round.
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