Earlier this week, EPA and the ACOE began implementing the Trump administration’s efforts to deconstruct the Obama rule defining “Waters of the United States” under the Clean Water Act. EPA and the ACOE submitted for Federal Register publication a proposed rule that would temporarily restore the WOTUS definition that existed prior to the promulgation of the Obama rule in 2015, while they go about drafting a narrower definition.
The overall effort to undue the WOTUS rule is obviously important, but I have to confess, simple country environmental lawyer that I am, that I find this proposal mostly just puzzling. I would of course hate to think that anyone acting at the behest of the President would do anything disingenuous, but it’s hard to think of a different word here. The proposal states that its intent is to reduce uncertainty in the regulatory community. However, one point on which all sides agreed prior to promulgation of the 2015 rule is that the status quo was intolerable, precisely because no one knew what WOTUS meant.
It is difficult to see how a return to that regime would increase certainty in the regulatory community. BTW, it’s worth noting here that the proposed rule indicates that a return to the pre-2015 status quo also includes a return to reliance on the 2008 Guidance interpreting Rapanos, which conservatives hated because it relied on Kennedy’s “significant nexus” opinion. It’s difficult to believe that the administration really means that.
The proposed rule also states that withdrawal of the Obama rule is important, because judicial decisions on the Obama rule might otherwise leave different definitions in place in different states. However, since the entire thrust of the proposed rule is to emphasize the importance of section 101(b) of the CWA, which is intended to “recognize, preserve, and protect the primary responsibility and rights of States” in the implementation of the CWA, it’s pretty clear that this administration is not troubled by different levels of protection in different states. Does anyone following this process expect any outcome other than a narrowed definition which sticks pretty closely to adjacent waters, with repeated declarations that states are free to regulate more stringently?
Finally, commenters have noted that the proposal does not address the science behind the 2015 rule, relying on the President’s authority to make different policy choices, as long as they are “reasoned.” I still think that it’s going to be difficult to defend a very narrow definition purely on policy grounds. We’ll find out sometime in the next few years.
Another significant change that will occur with a return to the ambiguity of the old WOTUS approach is that much effort and expenditure will be required for case- by- case on- site studies that can be extremely burdensome to project proponents. I recall in particular having to perform such studies for clients who were developing small daycare facilities with small budgets.