High Stakes in “Waters of the United States” Rulemaking

Donald Kochan

The Clean Water Act (“CWA”) gives the Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“Corps”) jurisdiction to regulate discharges and other activities related to “navigable waters,” a phrase which the CWA—in a manner far from a fount of clarity—defines as “waters of the United States.”[1] “Waters of the United States” (“WOTUS”) is thereafter not defined in the CWA. Hence, courts and the relevant agencies struggle to find its meaning.

Across the past forty-plus years, the U.S. Supreme Court has generated a convoluted ping pong match of opinions, volleying between wide and narrow interpretations of “waters of the United States.” (For some of this history, see Melissa Berry, Matthew Parlow, & Donald Kochan, Much Ado About Pluralities: Pride and Precedent Amidst the Cacophony of Concurrences – and Re-Percolation After Rapanos, 15 Virginia Journal of Social Policy & Law 299 (2008)).

The result has been instability of meaning at the agency level too. The lack of clear guidance from the courts on a limited meaning of WOTUS has left a void. In a 2015 rulemaking, EPA and the Corps happily exploited the judicial uncertainty of meaning by adopting a dramatically broad, new administrative definition of WOTUS. That 2015 Rule was stayed by the U.S. Court of Appeals for the Sixth Circuit.

Whatever “waters of the United States” means under the CWA, it cannot possibly mean what the Obama Administration defined it to mean in its 2015 WOTUS Rule. The Trump Administration EPA and Corps are now undergoing a rulemaking to rescind the 2015 rule and conducting “a substantive re-evaluation of the definition of ‘waters of the United States.’” See https://www.epa.gov/wotus-rule. The gravity of the moment, for myriad aspects of the law and the legal system, cannot be overstated.

Let me commend a new study—just released September 26—that examines the 2015 Rule to reveal what’s at stake in this rulemaking: Restoring Meaningful Limits to “Waters of the United States(authored by Daren Bakst, Mark C. Rutzick, and Adam J. White). Read it online or download the PDF here. Those interested in the learning the details about the 2015 WOTUS Rule as an exemplar of sweeping regulatory overreach, and why it must be rescinded, should take a look.

This Regulatory Transparency Project white paper is an excellent primer on the issues, and it explains—with detailed analysis and concrete examples—why the 2015 WOTUS Rule goes beyond the intent of Congress, does so in ways that fail to protect the environment, substantially constrains property owners from ordinary activities, carries significant financial costs, and risks potentially irreparable damage to our core constitutional values by threatening permanent erosion of constitutional limits were it to upheld as an enforceable definition in the courts.

This rulemaking is not just about your ordinary issue of the optimal level of environmental regulation. For decades now, the phrase “waters of the United States” in the Clean Water Act has been a catalyst for debates that implicate countless pressure points in our system of laws and policy.

Most directly, the debate is about the meaning of WOTUS. Related is whether a definite meaning for those words can be found at all in the CWA using ordinary methods of statutory interpretation. Which leads to questions about the appropriate methodology courts should employ for interpreting statutory text. Which necessarily entails broad administrative and constitutional law questions of what to do in the face of ambiguity, including how much deference to afford administrative agencies. Which also begs the question – where’s Congress? Why has it hardly passed any serious environmental legislation since the 1970s and why has it not updated and clarified statutes that are filled with unclear mandates susceptible to abusive administrative interpretations that generate substantial uncertainty?

Those questions then all set up and necessitate a discussion on the appropriate role of administrative agencies, including how much power Congress can legitimately delegate to agencies to regulate. Should Congress be able to pass the buck by legislating in such vague terms that agencies have almost unlimited power to fill the gaps?

Our determination of the scope of “waters of the United States” also impacts what level of federal footprint will be tolerated on traditional state law issues like water and property rights in the name of environmental protection. Questions of federalism as well as the wisdom of federal management of land issues all come into play. The debate also requires us to ask whether a nearly limitless definition of “waters of the United States” is even helpful to environmental goals.

The WOTUS debate raises a lot of big issues. Restoring Meaningful Limits to “Waters of the United States offers a good summary of the stakes involved in getting the definition right, in properly identifying constitutional limits, in protecting citizens from onerous and unnecessary regulations, and in allocating power within our system of governance according to sound and appropriate principles.

Donald Kochan

Professor of Law and Executive Director, Law and Economics Center

Antonin Scalia Law School, George Mason University

Energy & Environment

The Federalist Society and Regulatory Transparency Project take no position on particular legal or public policy matters. All expressions of opinion are those of the author(s). To join the debate, please email us at [email protected].

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