Federal regulators say redefining the Waters of the United States (WOTUS) is about “increased clarity.”
However, Reed Hopper and Todd Gaziano of the Pacific Legal Foundation write in the Wall Street Journal [subscription required], that WOTUS does no such thing:
The draft rule redefines “waters of the United States” so broadly that it covers virtually any wet—or occasionally wet—spot in the country, including ditches, drains, seasonal puddle-like depressions, intermittent streams, ponds, impoundments, prairie potholes, and large “buffer areas” of land adjacent to every waterway.
Specifically, the draft rule would allow for federal regulation of any pond, stream or ditch that has significant effects on downstream waters—and lets the agencies aggregate the effects of similar features across an entire “ecoregion,” covering thousands of square miles, such as the Central Great Plains. Certain ditches and artificial pools are excluded from federal control—but only if they are in dry, upland areas.
It starts by including all tributaries in the nation (e.g., your backyard creek), and then authorizes federal officials to decide on a case-by-case basis if any “other waters” or land should be regulated. The proposed rule also asserts that federal jurisdiction is not limited to water contained in “aquatic systems” but covers the “associated chemical, physical, and biological features” of any aquatic system “as a whole.”
What isn’t a chemical, physical or biological feature of an aquatic system as a whole? Does that cover an entire ecoregion? Probably, since agency bureaucrats generally have discretion to interpret and apply their own definitions. Rather than clarify federal jurisdiction, as promised, the proposed rule introduces vastly greater uncertainty.
Things will be as clear as mud.
By taking a step back we see how WOTUS is the product of a broken regulatory process. Hopper and Gaziano write of how EPA and the Army Corps of Engineers have evaded two Supreme Court rulings in their quest to take further control over U.S. waters:
In SWANCC v. Army Corps of Engineers (2001), the court forbade the Army Corps from regulating “isolated water bodies” that were not connected to traditional navigable waters. Nevertheless, the Army Corps and EPA have largely ignored or circumvented the ruling with new interpretations. They claimed that they could regulate anything with a “hydrological connection” to traditional navigable waters—including normally dry-land features such as arroyos in the desert as well as ditches and culverts hundreds of miles from traditional navigable waters.
In Rapanos v. United States (2006), the Pacific Legal Foundation challenged the agencies’ jurisdictional reach again. A majority of the justices ruled that federal agencies could not regulate wetlands merely because they have a hydrological connection to downstream navigable waters.
Nevertheless, the agencies now seek to regulate isolated water bodies and any “other water” with a hydrological connection to traditional navigable waters—the very waters the Supreme Court said they could not regulate.
The agencies have never relented. WOTUS is the latest chapter in a history of regulatory overreach.
A more extensive argument on WOTUS' flawed legality is found in comments on WOTUS to federal regulators from the U.S. Chamber and 375 other trade associations.
The proposed water rule itself is bad for farmers, home builders, and other businesses, but it’s also representative of a federal regulatory apparatus insistent on extending its reach. For too long Congress has allowed agencies like EPA and the Army Corps to have too much discretion leading to much of the regulatory uncertainty we face. We must restore accountability to our regulatory system and make it work better for all of us.