Earlier this month, EPA’s Administrator and the Assistant Secretary of the Army for Civil Works announced their agencies were repealing the Obama Administration’s 2015 promulgated rule – the one that a number of agriculture associations had accused the Obama Administration of impermissibly expanding the definition of Waters of the United States (WOTUS).
The two agencies say they are “…recodifying the longstanding and familiar regulatory text that existed prior to the 2015 rule…” To codify means to arrange information in a logical order that others can follow.
The two agencies promised there will be a “new step 2” which will create a new WOTUS definition.
In the meantime, farmers, landowners and developers nationwide will be stuck with the uncertainty of the definition which existed prior to 2015. That definition is a mess!
You may recall, there were two cases ruled on by the U.S. Supreme Court which involved disputes over the Clean Water Act (CWA) and jurisdiction it had over adjacent wetlands. Justice Scalia, writing for the plurality in the Rapanos and Carabell cases, adopted what has been called the “Bright-Line” rule when he stated waters in WOTUS means “relatively permanent, standing or continuously flowing bodies of water – that is, streams, rivers, and lakes. Wetlands could also be included but only when they have a continuous surface connection to other waters of the United States.”
Justice Kennedy came up with the “significant nexus” test. He concluded that the CWA WOTUS definition required a more “malleable” approach. He stated the Corps should determine on a case by case basis whether the water in question had a significant nexus” to waters which are navigable-in-fact.
Justice Kennedy believed a nexus existed “…when the wetland, either alone or in connection with similarly situated properties, significantly impacts the chemical, physical, and biological integrity of a traditionally navigable water body.”
Bureaucrats run amok
With this language, the bureaucrats at EPA and the Corps went wild.
The bureaucrats did not follow Justice Scalia’s language but quickly adopted Justice Kennedy’s new test. The lower courts said there was no controlling majority and of course all of them applied Justice Kennedy’s “significant nexus” test. Believe it or not, some courts said this language was vague and difficult to implement.
If we are going back to apply the rules before 2015, this nutty procedure apparently will be enforced and in effect.
The EPA and Corps press release on September 12 claim the agencies would be returning to familiar regulatory text. Surely, they are kidding!
The good news in the September statement from the two agencies is that they are setting the stage for step two which will create a new definition of what constitutes a water of the United States. We can only hope that step two will be taken quickly.
An excellent summary regarding what constitutes a water of the United States was provided by the Congressional Research Service (CRS) August 8, 2016. This report by the CRS has a table listing the major federal actions taken to define what is a WOTUS. On February 6, 1973, EPA issued a memorandum attempting to outline the jurisdiction of the Clean Water Act and the Corps first attempted to define navigable waters on May 4, 1973. The list then sets forth numerous dates attempting to define WOTUS and these actions continue through the 80s, 90s and 2000.
As you may remember, on June 29, 2015, the Corps and EPA issued their definition of what constitutes WOTUS. This definition was met with overwhelming rejection by farmers and landowners throughout the United States. The definition was so egregious it became a major plank in Donald Trump’s campaign for the Presidency. It is hard to believe it has taken almost three years for leaders in the Trump administration to deal with this issue. Let us hope that step two for a new WOTUS definition will come quickly. Given the opposition in the bureaucracy to the President’s plans, it is unlikely this issue will be resolved before November, 2020. We can only hope.
A version of this column originally ran in the October 1, 2019 edition of Farm Progress.