EPA/Army Corps Propose to Formalize Waters of the United States Definition
Last week, the Environmental Protection Agency and U.S. Army Corps of Engineers proposed the third new definition of “waters of the United States” in the past six years. Unlike the Obama Administration, however, the Biden Administration is taking a modest and somewhat conservative approach that does relatively little to redefine the scope of federal regulatory jurisdiction under the Clean Water Act, perhaps with an eye toward eventual Supreme Court review.
The new EPA/Army Corps proposed rule is basically a revision of the pre-2015 regulatory definition that seeks to account for the Supreme Court’s decisions in SWANCC v. U.S. Army Corps and Rapanos v. United States. In this respect, the rule is something the Army Corps and EPA could have (and likely should have) done long ago. It is also likely to be significantly less vulnerable to legal challenge than was the Obama Administration’s so-called WOTUS rule (or the Trump Administration’s replacement).
The biggest change to the regulations is to replace the pre-2015 rule’s overbroad invocation of federal regulatory authority under the Commerce Clause with language referencing the jurisdictional tests proposed by Justices Scalia and Kennedy in Rapanos. In other words, the EPA and Army Corps seem more interested in providing regulatory certainty and conforming their regulations to relevant judicial opinions than with asserting the broadest regulatory authority possible.
The pre-2015 rule, which had been in place since the mid-1980s, had asserted federal regulatory authority over all waters “the use, degradation or destruction of which could
affect interstate or foreign commerce.” Such a broad assertion of jurisdiction went far beyond the scope of the federal commerce power — which requires “substantial effects,” not merely effects (let alone
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