Yesterday, EPA and the Army Corps finally released their long-awaited rule defining “waters of the United States.” I’m actually with EPA and the Corps on this one. It’s an important rule, and I’m glad that EPA and the Corps did finally give up on the guidance approach and issue a rule, but here’s why I don’t see this as earth-shattering.
Since Rapanos, EPA and the Corps have made numerous jurisdictional determinations. While EPA and the Corps project a small increase in positive jurisdictional determinations under the rule as compared to recent practice, the increase is likely to be small and recent determinations have been basically consistent with the positions they are taking in the rule. (And given EPA’s and the Corps’ view of the science behind the rule, one would expect case-by-case positive determinations to increase even if EPA did not finalize the rule.) Those determinations have been upheld so long as EPA and the Corps have provided some scientific support for the determination. In short, the rule pretty much codifies what EPA and the Corps see as the extent of CWA jurisdiction.
Of course, there will never be a perfect match between a rule of broad applicability and case-by-case determinations, but I think everyone agrees in the abstract that the certainty of a rule is better than incurring transaction costs anew with each separate determination. Moreover, just as EPA and the Corps have prevailed in judicial review of individual determinations, here too EPA has mustered sufficient scientific support for its position that the waters identified in the rule as jurisdictional have a “significant nexus” to traditional navigable waters.
Putting aside the possibility of congressional action that can withstand a veto, I’d be surprised if this rule does not survive judicial review.
I’d also be surprised if this rule leads to the end of western civilization.