Environmental Protection Agency

Revising WOTUS

The Trump Administration is attempting a welcome redefinition of "waters of the United States"

|The Volokh Conspiracy |

Although federal courts have rejected the Trump Administration's effort to suspend operation of the Obama Administration's expansive WOTUS ("waters of the United States") rule, the Environmental Protection Agency and U.S. Army Corps of Engineers are moving ahead with their effort to adopt a narrower WOTUS rule that may survive judicial scrutiny.

The reason the WOTUS definition is important is because it defines the scope of federal regulatory jurisdiction under the Clean Water Act (CWA). Historically, both the EPA and Army Corps have interpreted their jurisdiction quite broadly to reach any and all waters and wetlands, and even some not-so-wet-lands, throughout the country. The Supreme Court rejected the agencies' over-expansive interpretation of their own authority in 2001 and again in 2006, but neither agency was in a hurry to revisit the rules.

The Obama Administration finally went through with a new WOTUS definition in 2015, prompting significant litigation and a fair amount of skepticism from lower courts, some of which have enjoined the rule's enforcement. In February 2017, President Trump ordered the EPA and Army Corps to revisit the rule and promulgate a new WOTUS definition that is more restrained and observes traditional limits on the scope of federal power.

The agencies eventually put forward a proposed revision of WOTUS for notice and comment in February of this year. The comment period closed yesterday, but not before I submitted this public interest comment for the GW Regulatory Studies Center.

In the comment I note there are several good things about the proposed revision, including its recognition of the constitutional and statutory limits on federal regulatory jurisdiction and its concern for focusing federal regulatory efforts where federal intervention is likely to do the most good. I also (perhaps uncharacteristically) noted that the agencies may have gone a little bit overboard in their zeal to curtail federal jurisdiction by not asserting direct authority over interstate waters as part of the "waters of the United States." While most such waters may be captured by other parts of the revised WOTUS definition, I suggested that there are both legal and policy reasons to be skeptical of this omission.

The full comment is available here. A summary comment is available here.

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19 responses to “Revising WOTUS

  1. In short, expect the new regulations to extend up to, but not past, the point where inconvenience for land development interests begins. And expect increased, not decreased, litigation from conservationists—who will be challenging whether the new regulations faithfully implement the CWA.

  2. Ahh yes, more Trumplaw. Any rule that a judge appointed by the Kenyan doesn’t like is “arbitrary and capricious.”

    1. Do right-wing websites in general (and the Volokh Conspiracy in particular) generate bigotry or, instead, merely attract bigots?

      1. I don’t know, Rev. Why are you here? Obnoxious as DGL’s comment was, he doesn’t hold a candle to your bigotry.

        1. I get the Rev hits you more where you live than AltThreeNames, but the one who wants to actually kill liberals and ban women from voting has some guy who doesn’t like religion and thins conservatives are dumb beat.

          And he does ask a good question – what’s up with all the white supremacists on this website these days? Does it reflect a change in the site? In the Internet? In the GOP? I dunno, but even some of the old-timers have been exploring drastic measures to save Western Civilization from immigrants.

          1. “what’s up with all the white supremacists on this website these days?”

            I’d say it’s two things:

            1) There are maybe 2 or 3 white separatist/supremacist commentators on the site. Assuming that they’re not parodies, or all sock puppets of the same person.

            2) “White supremacist!” is the new “Racist!”; It’s what the left now calls anybody who disagrees with them. Most of the people getting accused of white suprematism these days are getting accused of it on the basis of the left not being willing to admit that there’s any other possible motive for wanting to restrict immigration or oppose racial quotas.

            You demonstrated that yourself: “I dunno, but even some of the old-timers have been exploring drastic measures to save Western Civilization from immigrants.”

            Measures that aren’t white supremacy. And we’re exploring drastic measures because western civilization is under an extreme threat at the moment.

            1. Brett, you quote Camp of Saints as a dark prediction and not racist claptrap, so yeah, I’d say you’re one of those exploring some drastic measures.

              Add in the Replacement conspiracy you’ve got going on, and you walk a dark trail, friendo.

              White supremecy isn’t an action, it’s a paradigm. I tend not to think people are coming from there, but when people explicetly cite white supremecist works and people, I don’t know what else to say.

              1. Yes, I am exploring some drastic measures, because illegal aliens are currently flooding in at a rate in excess of 1.2 million a year, and growing fast, and it seems likely that by the time the lawfare and ‘resistance’ can be overcome, there will be substantial facts on the ground that need to be overturned if America is to survive in anything but name, and maybe even in name.

                I have never read Camp of Saints, my only familiarity with it comes from some descriptions I’ve heard on the radio and the internet, a rough summary of a plot that looks disturbingly like recent history. I’ve heard some people call it a racist novel, but in light of some of the things I’ve seen characterized as ‘racist’, that doesn’t mean squat to me without concrete examples of how exactly it’s ‘racist’.

                The key point here is, I don’t give a fig about race. (Heck, I’m interracially married!) So how the Hell can I be a “white supremacist”?

                I care about CULTURE. America is a successful country because of its culture, not because of the skin color of its citizens. Honduras is a failure of a country for the exact same reason. And importing people from Honduras makes the US more like Honduras.

                Why in the world would we want to be more like Honduras?

          2. Aren’t we all white supremacists these days?

            Anyone that believes in the concept of white privilege obviously thinks whites are supreme.

            Anyone that rejects the concept of white privilege strangely is considered at least white supremacist curious.

  3. I also (perhaps uncharacteristically) noted that the agencies may have gone a little bit overboard in their zeal to curtail federal jurisdiction by not asserting direct authority over interstate waters as part of the “waters of the United States.”

    There is every reason to be skeptical of any environmental proposal put forth by Trump’s EPA. These are not honest people.

    1. “These are not honest people.”

      And, how, exactly, does that make them any different from ANY politician, of any political stripe?

      1. “how, exactly, does that make them any different from ANY politician”

        They’re dishonestly biased in a way that is different from some politicians, and (at the same time) dishonestly biased in away that is similar to some other politicians.
        The difference (as always) primarily lies in who stands to benefit.

    2. Bernard,
      Same could be said for the overzealous Obama EPA that claimed all the dry arroyos in NM as part of WOTUS and wouldn’t allow property owners to clean out the trash or minimize the vegetation.

      1. I can believe that there was an excess of zeal.

        1. Whipsawing back and forth, depending on which party has captured the White House most recently, serves nobody.

    3. Why does a creek going across a state line become anything to do with navigable waters?

      Or even rivers like the Truckee river that goes from Lake Tahoe to Pyramid lake in the Nevada desert?

      We really don’t need the federal government running everything for everyone.

      1. What Kazinski May mean here with the Truckee River is that it cannot be navigable, because the water in it never reaches the ocean. Instead it drains into the desert where it ultimately evaporates.

        1. That goes maybe a bit too far, in the sense that a body of water is perfectly capable of being navigated without ever reaching the ocean. Some of the artificial canals that used to bridge the Midwest come to mind.

          And perfectly capable of not being navigable despite ultimately reaching the ocean, like the 6″ deep creek next to my house.

          Ultimately, “navigable” has to be based on the character of the watercourse. The Truckee River actually IS navigated in places, it gets used for white-water rafting. Probably not what was intended by the term when the statute was enacted, though.

  4. […] clarity finally coming on the scope of federal control of local surface waters? [Jonathan Adler on Trump administration “Waters of the United States” regulation; Tony Francois, […]

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