The debate over the definition of “Waters of the United States” goes on and on. I tend to think that Kennedy’s “significant nexus” test was a reasonable approach to making sense of a vague statute. I also think that the Obama administration definitional rule was supported by good science.
What we sometimes lose track of in the ongoing debate is that the definition – whatever we choose – matters, that ordinary citizens’ use of their property is affected by how the Corps applies the rule, and that the current system fails to provide anything near the level of reasonable certainty that we’re entitled to expect.
Exhibit A? Orchard Hill Building Company v. US Army Corps of Engineers, in which the 7th Circuit Court of Appeals just vacated a District Court judgment and ordered the Corps to revisit its determination that the plaintiff’s wetlands constitute Waters of the United States. Orchard Hill originally asked for a jurisdictional determination in 2006. It’s now 2018. The case still isn’t over, because the Corps has yet another shot at determining whether the wetlands at issue are in fact jurisdictional.
Would it be rhetorical excess to argue that delays such as this help explain why President Trump is in fact President Trump? May I at least suggest that such delays undermine respect for the regulatory system?
One final note, just to confirm that I haven’t gone over to the dark side. One of the arguments that the Obama administration made in support of the WOTUS rule was precisely that it would provide a lot more certainty and thus eliminate many such delays. I happen to think that they were right – though it’s also true that some of the presumptions in the Obama WOTUS rule were challenged from the left as not being sufficiently protective.
Sometimes I think that the perfect is the enemy of the good. Sometimes I think that our entire political system is the enemy of the good. And I’m an optimist!
It is not just delays that cause big problems in the absence of the WOTUS rule. One of my pre- Rule clients had to drop a small child care facility project because of the disproportionately high cost of on- site studies to resolve WOTUS jurisdiction. And, of course, there is no generic “perfect ” in this matter, because water connections are uniquely site-specific.