EPA Proposes to Use Science to Identify Waters of the United States. I’m Shocked, Shocked. | Foley Hoag LLP – Environmental Law

Last week the EPA and the Army Corps proposed a new rule to define what “United States waters” are. Again and again déjà vu.

As part of the proposal, the agencies have:

exercise their discretion to interpret “United States Waters” to mean the waters defined by the longstanding 1986 ordinances, with changes to certain portions of those regulations to reflect the government’s interpretation of the legal limits on the scope of the “waters” reflect the United States ”and provides information on the case law of the Supreme Court. Therefore, in the proposed rule, the authorities interpret the term “United States waters” to include: traditional navigable waters, interstate waters, and the territorial seas and their adjoining wetlands; most of the “waters of the United States” impounded; Tributaries to traditional navigable waters, interstate waters, the territorial seas, and impoundments that meet either the relatively permanent standard or the significant nexus standard; wetlands adjacent to impoundments and tributaries that meet either the relatively permanent standard or the significant nexus standard; and “other bodies of water” that meet either the relatively permanent standard or the significant Nexus standard. The “relatively permanent standard” refers to bodies of water that are relatively permanent, standing or constantly flowing, as well as bodies of water with a continuous surface connection to such bodies of water. The “Significant Nexus Standard” refers to bodies of water that, either alone or in combination with similarly located bodies of water in the region, demonstrate the chemical, physical or biological integrity of traditional navigable bodies of water, interstate bodies of water or territorial seas (the “Ground Waters”).

I think the agencies have done a pretty good job of tying their science-based approach to a specific language in the law to defuse the arguments that the proposal is beyond the scope of the statute. What SCOTUS will do with WOTUS is a different matter.

My friend Jeff Porter just made an excellent post on the proposed rule referring to “that onerous trade clause”. Despite Jeff’s excellent contribution, I just don’t see the trade clause as a hindrance (which is not the same as if SCOTUS will use the trade clause as an excuse to kill a rule that a majority disliked). Assuming science is right now, does anyone really believe that the trade clause is not wide enough to allow the authorities to protect these waters? My SCOTUS nomination is not coming that fast, but it just seems to me that this regulation is not unconstitutional.

I think that the question of legal interpretation is closer. The question is what a court will do if the clearly formulated requirements of the law dictate this type of rule, but the promulgation of the rule seems to expand the term “navigable waters” beyond the limits of that concept which anyone can really imagine.

Click here to view the video.

https://www.jdsupra.com/legalnews/epa-proposes-to-use-science-to-identify-7367795/