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EPA, Corps to release wetlands regulations

Hopefully, the 45-year battle over the government’s definition of what constitutes navigable waters is drawing to a close

Earlier this month the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) announced that they were proposing “a clear, understandable, and implementable definition of the waters of the United States that clarifies federal authority under the Clean Water Act.” Although the proposed regulations have not been published in the Federal Register quite yet, a 253-page prepublication version has been released on EPA’s website, and it is well worth the read.

Skipping to the end, the definition prescribes some stringent sideboards on what will fall within the definition of “Waters of the United States” (WOTUS). Although the definition is lengthy, it is the first serious regulatory attempt to draw a line between what may be considered wetlands and what does not qualify. In 25 words or less, WOTUS will now mean “Waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce….”

In the past, as recently as 2015, it seems that the definition had been “if it is wet, ever has been wet or may ever be wet in the future” it was wetlands and subject to WOTUS rules.

This jurisdictional controversy has been on-going since the Federal Water Pollution Control Act Amendments of 1972 were forced down the throat of President Nixon by a veto-proof Congress. Although the concept of “navigable waters” as the term was used in the 1972 act was intentionally and unequivocally ambiguous, previously it had always been conceptually tied to navigation. In the hands of the EPA, however, mission creep resulted in a perpetual attempt to expand the jurisdiction.

EPA has always been a rogue agency. It was established as an independent agency for that specific purpose, and it has fulfilled that mission aggressively. Literally thousands of cases have been litigated by the EPA, often turning on the extent of its jurisdiction.

Several of those cases have made their way to the U. S. Supreme Court (SCOTUS) where the justices have virtually pulled their hair out trying to draw the line between what was wet and what was not.

Perhaps the cornerstone case was Rapanos v. United States, 547 U.S. 715 (2006) in which the Court simply could not decide the matter. Four justices agreed on an opinion that would have identified a bright and shiny line for the EPA to use, essentially requiring a given waterbody to have a surface connection to navigable waters. Four justices dissented from that opinion and the ninth Justice, Justice Kennedy, came down with a different definition altogether, requiring only a “significant nexus” between the contested area and other navigable waters. It was the Kennedy opinion that most people elected to follow, but no one could ever agree on what nexuses were “significant”.

President Trump, to his undying credit, issued Executive Order 13778 “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the Waters of the United States Rule” on February 28, 2017. This order charged the EPA and the Corps to consider interpreting WOTUS in a manner consistent with the plurality opinion in the Rapanos case. Politically, given the change of the make-up in SCOTUS since Rapanos was handed down, it is likely that, when challenged in the courts, any new regulations which emerge as the result of this proposal will withstand judicial scrutiny, and the lid will be closed on this version of Pandora’s box for a very long time.

CORRECTION: In my last article, “A Taurus' Role in the Age of Aquarius”, I managed to misstate Jason Brune’s birthday by a few days. He is still a Taurus but, nonetheless, I regret the error. To compound the felony, I asserted that he had been awarded a master’s degree, while in fact, his candidacy is still pending.

KUDOS: I applaud the many contributions of Secretary Zinke to the Department of the Interior during his tenure as secretary. He has done more for the Department than any Secretary since James Watt.


Reader Comments(1)

Eidolon writes:

We're going to miss Zinke. He introduced reforms to DOI that were long overdue.