Unwinding And Recrafting WOTUS

Have you lost track of the debates surrounding what used to be called WOTUS, shorthand for “waters of the U.S.”?

That may be because of how the media changed their coverage of the issue.

Now that the Trump administration has finally begun a new comment process by publishing in the Federal Register on February 7 its recrafting of the WOTUS rule, it’s useful to recall some salient facts.

When President Barack Obama’s administration first proposed what it called a redefinition of the term “waters of the United States” in the Clean Water Act (passed in 1972, amended in 1977 and 1978), WOTUS became the accepted media shorthand and reliable internet search term to keep track of the controversy.

Obama’s EPA never adequately explained why a mere “redefinition” needed to be 70 pages long. The “redefinition” that was finalized in June 2015 never gave proper time for affected groups to comment. Farmers discovered that it would have unilaterally extended Clean Water Act jurisdiction to so-called “ephemeral” waters, including puddles, ditches and wetlands—in fact, any land whose groundwaters could be argued to have an “ecological” connection to any navigable waters. In effect, it removed the qualification “navigable” from the original act’s definition. The new definition would have included most of the fertile, productive land in the continental U.S.

Many, many legal scholars of all political persuasions concluded that such a drastic extension of an existing rule not only amounted to a new rule but was in fact a sweeping new law enacted in violation of Congress’ exclusive lawmaking powers. It would have extended Clean Water Act jurisdiction far beyond anything envisioned by the Congress that passed it.

Although two conflicting and confusing Supreme Court decisions provided the formal rationale, the process of creating the WOTUS redefinition was furtive and dishonest from the start. The WOTUS rule was supposed to have been jointly formulated by the Environmental Protection Agency together with the Corps of Engineers, the nation’s water regulator.

But the Corps was very much a reluctant and unwilling partner. As shown by documents apparently deliberately leaked by a source within the Corps to Sen. Jason Chaffetz (some marked “litigation sensitive”), the Corps’ objections to the process were routinely ignored and dismissed. Among other objections, the Corps noted that showing a version of the rule to other federal agencies that differed from the one offered for public comment violated the federal rule-making process.

A strongly worded letter from the Corps to EPA at the time, included in the leaked documents, said “the draft final rule has departed markedly from the sound legal and scientific principles of the proposed rule, in several important ways, and those basic changes make the draft final rule legally vulnerable.”

So it proved. The WOTUS rule was immediately challenged by multiple lawsuits by dozens of states, farmers, and manufacturing and trade groups.

In November 2015, the Senate (later joined by the House) passed a joint resolution of disapproval (S.J. Res. 22) stating that EPA and the Corps of Engineers violated the Congressional Review Act by not informing Congress of the impacts of WOTUS on small business.

In December 2015, the Government Accountability Office (GAO) found that the EPA had broken federal law by promoting support of WOTUS on social media. No one was ever held to account.

Donald Trump’s insurgent campaign stressed opposition to the highly unpopular WOTUS. After his election, his administration immediately looked around for ways to withdraw or repeal it. A series of court battles ensued; a useful timeline is provided on the website of the American Farm Bureau Federation (www.fb.org).

The upshot was that attempts by the Trump administration to repeal or withdraw the rule were delayed by the courts, including the Supreme Court, which ruled that only district courts, not appeals courts, could rule on it, thus cancelling the rule’s suspension in some states by one appeals court.

Because parts of the WOTUS rule were briefly allowed to apply in some states during these court battles, news stories changed their language. Headlines now spoke not of WOTUS but of “Clean Water Act protections.” News stories began to write wrote of “clean water protections” being “reversed.” The misleading impression was given that Trump was somehow seeking to “reverse” or “roll back” long-standing protections.

On February 7, the Federal Register finally published Trump’s EPA’s draft version of a new Clean Water Rule. A new public comment period is now underway.

Zippy Duvall, president of the American Farm Bureau Federation, called the release “a major step toward fair and understandable water regulation on America’s farms and ranches and other working lands. The previous rule would have treated much of the landscape as though it were water itself. That wasn’t just confusing, but also illegal, which is why so many federal courts blocked its implementation.”

On February 27, a public comment was offered by Blake Roderick, executive director of the Pike-Scott County (Ill.) Farm Bureau and member of the Executive Committee of the National Waterways Conference: “Since the Clean Water Act first passed Congress in 1972, the act has focused on navigable waters. Over time, the act was applied more and more expansively. The 2015 rule pushed wetlands jurisdiction to an extreme, beyond the limits established by Congress and, in our view, the Constitution.”

It’s taken a long time and cost hundreds of millions of dollars and countless hours in court, but the final replacement of the over-reaching, harmful and unconstitutional WOTUS rule is in sight.