Beveridge & Diamond PC
W. Parker Moore

November 21, 2014

It was inevitable I suppose.  In a town where every policy discussion reaffirms the lampooning it receives in HBO’s “Veep,” it was only a matter of time until the EPA/Army Corps’ proposed rule on the scope of jurisdiction under the Clean Water Act earned an insider Washington acronym.  After all, “WOTUS” is much cooler than saying “waters of the United States.”  Plus it’s a real time-saver – imperative when referring to a rule eight years in the making.

As everyone knows by now, the massive WOTUS proposal grew out of the remarkably timid and confusing Rapanos ruling by the Supreme Court of the United States, “SCOTUS.”  There, the Justices split 4-1-4 when presented with a straightforward question:  “Are remote, non-navigable waters and wetlands subject to federal jurisdiction under the Clean Water Act?”

You might expect that kind of deadlock if the Justices were debating whether to order pizza or Chinese for lunch, but not when the country’s brightest legal minds are asked to resolve an issue of national importance that has already been the subject of multiple high court decisions.  And in true Sisyphean fashion, SCOTUS urged EPA and the Corps to take up WOTUS in their regulations – the same rules that landed the case on the Court’s doorstep in the first place.

That left the ultimate authority with the President of the United States, “POTUS,” through the administrative agencies that office oversees.  The POTUS residing in the White House at the time of the Rapanos decision didn’t manage to get a new rule out, leaving the job to his successor.  At long last, the current POTUS’s EPA and Corps issued a WOTUS proposal this April and requested public input.  They may wish now that they hadn’t.

Comments flooded in from every corner of the country, from every possible interest group, and from every level of government.  As criticism mounted, the comment deadline was extended, and then extended again.  Hoping to stem the tide, EPA set up a website dedicated to explaining what the proposed rule does and does not do.  It didn’t work.  When the comment period finally closed last Friday, nearly 500,000 comments had been lodged.

Looking at even a small sample of those comments, it is clear that POTUS needs more than a website to clarify SCOTUS’s take on WOTUS.  But it is also clear that WOTUS is suffering from another malady common in Washington, D.C.:  political-footballitis.  At one end of Pennsylvania Avenue, the environmental community labels WOTUS an ecological disaster waiting to happen – something comparable to any number of Hollywood box office flops.  At the other, certain factions deride WOTUS as an all-out “land grab” through which POTUS seeks to subject the entire country to federal jurisdiction.

For all its shortcomings, WOTUS is neither.  To be sure, the unartful proposal would significantly revise the regulatory definition of “waters of the United States.”  It also would choose between SCOTUS’s two competing jurisdictional standards from Rapanos by codifying the “significant nexus” test.  If promulgated, these changes would have real impacts.  They would confirm jurisdiction over many of the features for which jurisdiction most often is disputed.  Things like seasonal streams, isolated wetlands, and certain manmade ditches.

But that’s a far cry from empowering the government with unbridled discretion to regulate every natural and manmade feature on the landscape, no matter how remote or insignificant, and no matter how much water they contain (if they contain water at all).  It would not subject pipes, puddles, or uplands to Clean Water Act jurisdiction.  By the same token, neither would it surrender POTUS’s authority to regulate discharges into navigable waters.  There would be no unregulated Once-lers fouling Humming Fish ponds with abandon.  In truth, WOTUS would fall somewhere in between.  Somewhere very close to where the jurisdictional line now runs.  The problem is that POTUS has not made that clear in the proposal.

Fortunately, there is an easy solution.  To put an end to the political posturing and rhetoric, and to avoid a near-certain return trip to SCOTUS, POTUS must scuttle the overly complex and impossibly vague text of WOTUS and zero in on a simple, straightforward jurisdictional definition.  As evidenced by EPA’s website, the agencies know what they want to say; they just haven’t said it.  Until the proposed regulations do so clearly, the future of WOTUS will continue to lie in the hands of “LOTUS,” Lawyers of the United States.

This article was originally published in the Beveridge & Diamond Environmental Law Blog, EnviroStructure

This article is being provided for informational purposes only and not for the purposes of providing legal advice or creating an attorney-client relationship. You should contact an attorney to obtain advice with respect to any particular issue or problem you may have. In addition, the opinions expressed herein are the opinions of Mr. Parker  and may not reflect the opinions of Synergy Environmental, Inc., Beveridge & Diamond PC or either of those firms’ clients. About the Author


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