Today, the Corps of Engineers and Environmental Protection Agency issued their final rule defining “waters of the United States” subject to federal control under the Clean Water Act. The EPA web page is here, but don’t believe everything you read. The rule does not simply clarify existing regulation. It completely redefines the scope of federal authority under the Act in an attempt to make an end run around those Supreme Court decisions that have expressly said these agencies have gone too far. For the most part, our critique of the proposed rule still applies.
In 2001, the Supreme Court held in SWANCC that the Corps and EPA could not regulate isolated water bodies because that would read the term “navigable waters” right out of the Act and raise constitutional questions. But, the agencies continued to do so. In 2006, the Supreme Court held in Rapanos that the Corps and EPA could not regulate all tributaries with a so-called “ordinary high water mark” because that definition could not be consistently applied and extended to remote ditches, drains and sewers. But, the agencies continued to do so. Now, through this new rule, the Administration has adopted essentially the same definition of jurisdictional waters the Supreme Court rejected in SWANCC and Rapanos.
Moreover, the Administration deceptively argues that due to these decisions, millions of people have been denied clean water protections and that the new rule is necessary to close the regulatory gap while simultaneously claiming that the new rule is fully consistent with Supreme Court precedent. The Administration doesn’t seem to grasp this inconsistency. Instead, the Corps and EPA disingenuously blame the Supreme Court for their own ineptitude in clearly defining and enforcing their own Clean Water Act regulations for more than 40 years. Now they are at it again–seeking to expand their power with even broader regulations that are insupportable under the plain language of the Clean Water Act, Supreme Court precedent, and even constitutional constraints.
Soon, PLF will test this expansive new rule in court.