Yesterday EPA Assistant Administrator for Water Radhika Fox told an EPA Advisory Committee EPA remains committed to using Federal rule making to find "common ground" respecting the reach of the Federal Clean Water Act.
Assistant Administrator Fox's optimism is admirable but impossible to reconcile with our actual experience over the past several years and current realities.
As I've written in the past, rulemakings aren't, by their nature, as appropriate for compromising as legislating but are certainly more amenable to compromising than litigation which is where most of the Federal Clean Water Act lawmaking has been occurring of late.
But if EPA really wants to find common ground it might lead by example. EPA's pending "stage 1" regulation doesn't do that. It would expand the reach of the Clean Water Act to any "impoundment", "wetland" or "other waters" that are either "relatively permanent" or have a "significant nexus" to a "Water of the United States" as they have been defined for decades. Based on EPA's "stage 1" effort why would any stakeholder with a different view be "willing to get uncomfortable to find common ground" as Assistant Administrator Fox suggests.
And even if stakeholders with differing views might otherwise be inclined to "get uncomfortable", why wouldn't they now wait to see how the Supreme Court decides the pending Rapanos case which could, some would say likely will, affect the "significant nexus" underpinning of EPA's current proposal.
For these reasons, and others, sadly the most likely outcome of EPA's current and anticipated rule makings is more litigation as the longest running controversy in environmental law continues. The Clean Water Act deserves a better fiftieth birthday present.
The proposed rule interprets WOTUS to mean the waters defined by a collection of Corps and EPA regulations referred to as the “1986 regulations,” with amendments to reflect the agencies’ interpretation of the statutory limits on the scope of WOTUS as informed by Supreme Court decisions, including Rapanos v. United States. The agencies have said they plan a second WOTUS rulemaking “that they anticipate proposing in the future” and “which would build upon the foundation of this proposed rule.” At the ECOS meeting last fall, Fox said reaching a durable WOTUS definition is possible if stakeholders are willing “to get uncomfortable to find that common ground.”
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