The USEPA and Army Corps of Engineers finally announced what has been expected since Inauguration Day – the repeal of the 2015 "Waters of the United States" (WOTUS) rule. Not unlike the more prominent political battle raging over the Affordable Care Act, the administration now faces the stern challenge of replacing the controversial rule. Many of the themes of the healthcare debate are echoed in the struggle over how the government should regulate WOTUS.
For example, will any revised rule work to expand or limit the resources that qualify for protection under the Clean Water Act?
Objections to the 2015 rule focused on the apparent expansion of federal authority over particular water bodies that may not have been covered under the prior interpretation of the Act following the Supreme Court's fractured Rapanos ruling. Taking Justice Kennedy's "significant nexus to navigable waters" test to its logical extremes, certain industry groups claimed, would amount to an unauthorized "land grab" by the federal government. Indeed, many court rulings since Rapanos have concluded that determination of the status of certain water features is jurisdictional, resulting from fairly tenuous connections between the feature in question and a small stream or a larger river miles from the property.
Defining WOTUS jurisdiction to "relatively permanent" waterbodies that share "a continuous connection" to navigable waters—Justice Scalia's and the current administration's preferred articulation—attracts equally vociferous objections from various conservation groups. They claim that the Scalia test would overly restrict the Act's jurisdiction, perhaps to the exclusion of important water features they assert are crucial to the health of navigable waters or wetlands that act as natural buffers against severe storms or continued coastal erosion.
In addition, as in the healthcare discussion, any new rule will confront the role of the states versus that of the federal government.
At the heart of the administration's repeal notice is a return of authority over regulation of waterbodies to the states. The repeal announcement cites with equal importance the Clean Water Act's objective to "restore and maintain" the integrity of the nation's water and the policy to "recognize, preserve, and protect the primary responsibilities and rights of the States to prevent, reduce, and eliminate pollution." This leads us to ask, What if a state fails to take action to prevent or reduce pollution? Who decides what's enough? Again, this feels eerily like the debate over giving states authority to decide what health benefits are "essential" for covered patients. Given Administrator Pruitt's repeated reliance on the role of state authority over the entire panoply of environmental regulation, this will clearly be a significant aspect of any revised WOTUS rule.
Finally, the WOTUS rule and healthcare policy share the common theme of balancing stakeholders' need for regulatory certainty with permitting the exercise of commonsense flexibility.
Preserving the rights of states to make or influence jurisdictional determinations under the Act recognizes plain geographical and ecosystem differences across the country. Yet, promoting a regulatory approach that "one size does not fit all" could leave many regulated industries, like residential and commercial builders, subject to the unpredictable differences between states and between Army Corps districts. The 2015 rule attempted to answer decades-old pleas for regulatory certainty, but quickly led to certain buyer's remorse. Knowing with greater certainty what waterbodies would be covered by the rule across the country didn't satisfy stakeholders who felt that the clarity offered by the rule went too far.
EPA and the Corps have set a goal of publishing a new rule by the beginning of next year. While it's possible they will meet that goal, in order to do so the agencies will have to consider what is sure to be another avalanche of public comment whenever they release a revised draft rule. They will also have to defend the "repeal" step of the proposed two-step regulatory process against an inevitable legal challenge. (Congress is said to be considering legislation to curtail any such Administrative Procedure Act challenges – a remarkable action without much precedent.)
I'll offer some not-so-bold predictions: Even if EPA and the Corps publish a revised WOTUS rule in final form sometime in 2018, litigation over the rule will continue past the end of President Trump's first term. In the interim, uncertainty over the jurisdictional scope of WOTUS will continue. And the search for the perfect balance of certainty and flexibility in the Section 404 program, like Don Quixote's quest, will continue, "no matter how hopeless, no matter how far." Despite my exercise of poetic license (and my tendency to quote musical theater lyrics), participation in the revised rulemaking is still essential, and should not be equated with tilting at windmills.
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