On Wednesday, EPA and the Army Corps of Engineers announced that they plan to revise the definition of “Waters of the United States”. Simultaneously, DOJ moved to remand the Navigable Waters Protection Rule, in a challenge to the Trump-era rule brought by the Conservation Law Foundation. Can you say “déjà vu all over again”?
This is such a target-rich environment that I almost don’t know where to begin – but I’ll try.
First, EPA Administrator Regan stated that EPA and the Corps:
are committed to establishing a durable definition of ‘waters of the United States’ based on Supreme Court precedent and drawing from the lessons learned from the current and previous regulations, as well as input from a wide array of stakeholders, so we can better protect our nation’s waters, foster economic growth, and support thriving communities.
Whatever one’s political persuasions, it would be fair to say that that was precisely the objective of the Obama administration in 2015 and the Trump administration in 2019. What makes the current administration think that what they promulgate will be any more “durable” than those prior efforts?
One has to assume that the new rule will be similar in substance to the 2015 rule, given that the Biden administration presumably trusts the science behind that rule, while having more bright line exemptions to satisfy those on the right. Good luck threading that needle.
Next, it’s notable that the DOJ motion in the CLF litigation did not seek vacatur of the NWPR, arguing that there was no need for vacatur, because EPA and the Corps will be reviewing the very legal questions raised by the challenge to the NWPR. Yet, while arguing that vacatur is not necessary, EPA and the Corps assert that the NWPR “is significantly reducing clean water protections.” If that’s the case, and particularly where there is no timeline for promulgation of a new rule, one would have thought that EPA and the Corps would want to put a halt to such environmental degradation.
Oh, what a tangled web we weave when we keep trying to define Waters of the United States.
of course, it is not simply about the science but about the Constitution. There is paltry evidence that Congress intended to have purely intra-state, intermittent streams subject to federal regulation. Moreover, Congress did not have the benefit of today’s “science.” The 2015 WOTUS stretched the outer limits of federal jurisdiction over what was historically state-regulated water bodies.
In such circumstances, it should be Congress that makes the decision to assert federal jurisdiction over these intrastate water bodies and not unelected bureaucrats.