The state vs. federal dynamic in EPA’s new WOTUS rules

The recently published Waters of the U.S. rule has been met with lawsuits from multiple states and agencies claiming that it oversteps legal boundaries.

On June 30, the Federal Register published the Obama administration’s final Waters of the U.S. (WOTUS) rule. Among many changes, the new rules expand the number of streams and wetlands receiving automatic protection under the Clean Water Act. Publication starts the clock for when the rule goes into effect — in this case, 60 days — and for legislative intervention under the Congressional Review Act.

At least 27 states and state agencies have filed suit against the regulations, as have multiple trade associations.

While the litigation is sure to proceed for years, there are a few important points about water policy that deserve better understanding from public and private sector officials.

First, the 1977 definition of “Waters of the United States” was a significant change over Federal jurisdiction of waters. Although the pendulum has swung in both directions since then, Corps officials have typically taken great care to ensure regulation did not extend too far beyond the Federal scope. The 1977 rules also allowed for states to establish programs to regulate state waters, though few have ever attempted.

But the new proposed rules go beyond this definition, expanding federal jurisdiction beyond the law’s original intent. This will inevitably result in significant new burdens on the resources of both the EPA and Corps of Engineers. It is also sure to increase the already lengthy time frames to finalize Federal jurisdiction and evaluate permit actions.

This, in turn, could result in eroding decades of water quality improvements, as attention and resources are both diverted to litigation. In turn, this is sure to cause unnecessary inconsistencies in managing the Regulatory Program.

It’s also important to note that the states that filed lawsuits have missed decades of opportunity to implement programs to protect waters and wetlands, which would have appropriately allowed management of state resources and prevented expansion of Federal jurisdiction. Without viable state programs to regulate waters/wetlands, the EPA and Corps regulatory programs experienced years of pressure and were burdened with litigation from non-governmental organizations to increase jurisdiction.

If states were to take initiative and implement legislation to regulate and protect waters beyond Federal historical and legally accepted limits, that would provide a balance in maintaining an appropriate scope of Federal jurisdiction.

Fred Anthamatten
Senior Advisor

Fred spent more than 35 years in the Army Corps of Engineers including seven years as Galveston District’s Regulatory Branch Chief and 13 years as Chief, Enforcement Section

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