By M. Reed Hopper Senior Attorney
One of the most contentious federal regulations published in recent decades is the ill-fated and ill-legitimate “waters of the United States” or “WOTUS” rule that was issued by the Corps and EPA over the objections of Corps experts who argued the EPA misrepresented the science and misapplied the law. The political, scientific, and legal divide over this rule is still as hot today as it was when the rule was foisted on the public in June 2015. That rule expands federal jurisdiction under the Clean Water Act to almost all standing or flowing waters in the U.S. (not to mention huge swaths of land surrounding those waters) and deserves close scrutiny by Congress, the courts, and the new Administration.
Fortunately, the rule is getting that scrutiny. Two courts stayed the 2015 WOTUS rule after determining the rule would likely not withstand judicial review for lack of scientific support and failure to comply with the law, including PLF’s successful 2006 Rapanos decision limiting the scope of the act. In recognition of this fact, the President issued an executive order directing the EPA to revise the rule in keeping with the rule-of-law, economic realities, and Supreme Court precedent. And just yesterday, I testified on the rule at a sharply divided House Committee on the Environment.
My written testimony focuses on the history of the rule; problems with the rule relating to illegal inclusion of all “tributaries,” overuse of “adjacent waters,” lack of scientific support, the prohibited inclusion of “isolated water bodies,” failure to provide notice and opportunity for public comment, and constitutional conflicts. My testimony also addresses the courts’ stay of the rule, the effect of the Executive order calling for revision of the rule, and finally offers a proposal for improving the rule and curtailing overzealous enforcement of the act.
Here is a short summary of my written testimony:
The 2015 WOTUS rule may be the broadest expansion of federal power in the history of the Nation. Through an unprecedented interpretation of “waters of the United States,” the WOTUS rule imposes complete federal control over virtually all waters and much of the land in the Country subjecting millions of citizens to potential civil and criminal sanctions for ordinary land use contrary to express congressional intent and Supreme Court precedent. The rule also usurps the traditional power of the States to manage and regulate local land and water resources in violation of the U.S. Constitution.
More than 30 States and 70 private and community parties, including counties, industry, ranchers, farmers, builders, and other landowners, sued to overturn the rule. Two federal courts determined the WOTUS rule may be invalid because it is likely inconsistent with the Clean Water Act, the Supreme Court’s Rapanos decision, including Justice Kennedy’s broad “significant nexus” test, and appears arbitrary and lacking in scientific support. Moreover, these courts held the rule must be stayed to protect the States from losing their sovereignty and the general public from irreparable harm that follows from government overreaching. Revision of the WOTUS rule is therefore prudent and necessary.
To address the concerns raised in the 2015 WOTUS rule, overzealous agency action must be restrained by statutory amendment or regulatory directive. In either case, the law must be clear and unambiguous. It must be understandable to ordinary citizens and consistently and fairly applied. To that end, the government should focus on protecting core water resources and not small, insubstantial threats. Faithful adherence to the Scalia plurality in Rapanos offers the most judicious approach to Clean Water Act enforcement.
During my oral testimony, I addressed three questions:
1. Why is it important to correctly and precisely define “waters of the United States;”
2. Is revising the 2015 WOTUS justified? and,
3. Where do we go from here?
The video of the testimony, which includes three other panelists, can be viewed here.
I was pleased to represent PLF at this hearing and commend Chairman Biggs and the other committee members for addressing this important matter which literally affects millions of Americans nationwide.