ecology wotus (copy)

Another rewrite of the Waters of the U.S. rule is on the way.

The Biden administration has announced a two-step process to write new rules governing regulation of the waters of the U.S. — WOTUS.

The Environmental Protection Agency and the U.S. Army Corps of Engineers will re-establish the pre-2015 definition of WOTUS, then it will consult a broad “array of stakeholders” for “future regulatory actions.” More rules.

You can almost hear the lawyers calculating the hours they will bill on this latest WOTUS rulemaking.

At issue is which bodies of water can be regulated by the federal government under the Clean Water Act. The act gives the feds regulatory jurisdiction over navigable waters of the United States — the stuff of lawsuits. Conflicting Supreme Court interpretations over the act’s meaning and intent rendered the precedents unworkable, and new rules were necessary to make jurisdiction clear.

In 2014, the Obama administration started the process to make new rules. All the while it assured wary farmers and other property owners that it would not significantly expand the government’s authority.

In the waning days of the administration, the Environmental Protection Agency and the U.S. Army Corps of Engineers released the final WOTUS rule, which greatly expanded the definition of the “waters of the United States” and extended jurisdiction to waters with a “significant nexus” to them.

The rule failed to clarify the Clean Water Act. If anything, it raised more questions. Most troubling was the fact that any interpretations of the WOTUS rule were left to agency staff members. Landowners had no means of appealing those interpretations without going to court.

The Trump administration rescinded that rule. In 2020 it put in place the Navigable Waters Protection Rule, which excluded certain features from the definition “navigable waters for the United States,” including “ephemeral streams” — temporary streams resulting from precipitation.

At the time we predicted that once a Democrat took the White House, Trump’s rules would be tossed. This is one of those times that we wished we were wrong.

Back in the new interim rule is the “significant nexus” test that caused so much contention when it was originally implemented.

The original purpose of the WOTUS rulemaking was to clarify what waters are subject to federal regulation. But the significant nexus test clarifies nothing. The rule offers no objective standard to define the significant nexus.

All of this rulemaking will likely stretch to the next presidential election, or beyond. The litigation it — and subsequent revisions by the next Republican administration — will generate certainly will.

WOTUS is far more a boon to the trial bar than it is to clean water.

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