The Volokh Conspiracy

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Volokh Conspiracy

Revising WOTUS

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


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.