Waters of the United States: Definitely a Regulation, Not Guidance

Last week, what appears to be a draft (so long that it is in two separate parts) of EPA’s proposed rule defining “waters of the United States” was widely circulated.  Part of what I love about this story is that it is uncertain whether this is in fact the draft rule that EPA sent to OMB to review.  On one hand, it has many of the hallmarks of an EPA proposed rule.  However, there are some aspects that do read somewhat oddly, particularly the level of informality in the text.  According to the Daily Environment Report on Friday, Gina McCarthy testified that the draft rule is very early in the process of interagency review.  That makes sense, because my own take is that this has to be the rule, but that it’s definitely not quite ready for prime time.

Some aspects of the draft rule are not surprising and seem likely to be incorporated in any final rule.  These include defining all tributaries to waters traditionally regulated, and all waters “adjacent” to waters traditionally regulated as being among the “waters of the United States.  It is also unsurprising that EPA has proposed to determine on a case by case basis whether other waters have a “significant nexus” to waters of the United States.

What’s left to do?  A lot.  For example, EPA proposes to include a definition of “floodplains” and indicates that contributions to flood storage would be relevant to determining whether “other waters” have a significant nexus to waters of the United States and should thus be subject to jurisdiction.  However, EPA has not defined floodplain based on any particular level of storm event.  This has contributed to concerns noted in Greenwire that EPA is still trying to reserve a significant level of discretion in its interpretation of “waters of the United States.”

I have previously noted that the importance of this issue and the significant legal rights affected by the definition warrant EPA rulemaking, rather than reliance on case-by-case interpretation of guidance.  That the draft takes up two separate 160-page documents, and still leaves some important questions unanswered, only confirms that there is a reason why the rulemaking process exists.  EPA is apparently determined to issue this rule before Obama leaves office, but it still has some work to do.

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