A lot of proverbial ink has been spilled regarding the Trump administration's proposal to amend the definition of "waters of the United States" under the Clean Water Act. The administration has focused on what it views as a more reasonable legal interpretation of the historical scope of the term. It has also emphasized returning authority to the states and providing more certainty to landowners.
Environmentalists have focused on the broader interpretation that has historically been given to the term and that the Scalia opinion in Rapanos did not command a majority of the Court.
I think that the environmentalists are closer to the mark, but my approach would be to go back to first principles. Here's the first sentence of the Clean Water Act:
The objective of this Act is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.
Although the administration's proposal pays lip service to this by blandly stating that the rule will still be protective, it makes almost no effort to contradict the massive amount of science behind the 2015 rule. I'll go further – any effort by the administration to argue that science does not warrant a broader definition would be arbitrary and capricious.
In other words, any effort to narrow the 2015 rule is inconsistent with the objectives of the Clean Water Act. I'm actually sympathetic to the administration's legal argument. I think that any environmental legal scholar has to admit that it's a bit of a stretch to say that some ephemeral stream that is literally never "navigable," is nonetheless a "navigable water."
But if that's the case, then, rather than publishing a rule that fails to "restore and maintain the chemical, physical, and biological integrity of the Nation's water," shouldn't the administration be asking Congress to amend the definition of WOTUS to allow EPA and the Corps to accomplish the objectives of the Act?
I'm not naïve. I know it's not going to happen. But it would be a lot more honest on all sides and would have the merit of achieving the objectives of the Clean Water Act.
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