WOTUS ruling muddies regulatory waters

While farm and private property interests cheered, environmental groups last week bemoaned the Trump administration finalizing the repeal of the controversial “Waters of the United States,” or WOTUS, rule.

We see little to cheer or jeer at this point, as the repeal is hardly the final chapter in a dispute that has stretched on for nearly 10 years.

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.

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 to extend 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.

More than 30 states controlled by Republicans, joined by a host of farm groups, sued the federal government to block the rules. States controlled by Democrats sided with the administration. As a result, the rule was blocked in some parts of the country, the law of the land in others.

WOTUS was suspended last year by the Trump administration, the president making good on a campaign promise. In February the EPA and the Corps delayed implementation until 2020 while they work to replace the rule and redefine “waters of the United States.” These actions prompted a host of new lawsuits.

In December, the Trump administration proposed a new WOTUS rule, which it says will bring certainty to farmers and ranchers that they’re not going to face enforcement for what they do on their land and features such as a low spot that temporarily holds water after a rain won’t be subject to regulation.

The only thing certain is that the new WOTUS rules will be the subject of intense litigation and that the new rules probably won’t be the final rules — at least not in the near future. Should a Democrat take office in 2021 or 2025, we suspect the Trump rules will be overturned, new rules will be put in place and more lawsuits will be filed.

So far, WOTUS has done more for the trial bar than it has done for clean water.

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