Last week the EPA had the opportunity to bring greater clarity to Clean Water Act jurisdiction over so-called Waters of the U.S. (WOTUS). These are the waters EPA is authorized to regulate to address water quality, usually by delegating the authority to the states. EPA’s central talking point for months has been that the agency simply wants to return things to the way they were prior to a couple of Supreme Court decisions that rapped the agency on the knuckles for going too far in asserting its jurisdiction.
To forest owners this sounded like a pretty good objective on its face. EPA had never asserted that minor stream beds that are dry most of the time, man-made ditches (including ditches that manage rainwater), and areas that were drained long ago and have been forested for decades were Waters of the U.S. Clarity on these points would have been a strong step in the right direction to remove uncertainty, confusion and legal risk. EPA assured senior Members of Congress in both parties that the final WOTUS rule would provide the needed relief.
Unfortunately, the final rule seems to do everything but that.
Rather than provide more clarity, the final rule is riddled with caveats and exceptions that expand rather than reduce uncertainty. The agency says on the one hand that man-made ditches and rainwater control features put in place to meet CWA requirements are excluded as WOTUS, except when the agency determines they are not. The final rule categorically includes minor streambeds that are mostly dry as WOTUS, except when the agency says they are not. The complexity of the regulatory web is giving water lawyers all over town plenty to do as they try to discern agency intent, but it does little if anything to restore confidence to forest owners over their regulatory and legal exposure.
A principal shortcoming of the final rule was the process for producing it. Given the level of concern raised over the draft, the agency should have provided another opportunity for public comment to verify that the rule would actually meet the expectations the agency has raised these many months.
Instead, the EPA completed the final rule in a corner and must now try to explain all over again what it intended to do to an even more skeptical audience. Unfortunately, most of the explaining going forward will likely be through legal briefs and political talking points rather than constructive dialogue.
Forest owners continue to believe that there is a reasonable middle ground on WOTUS, but EPA’s final rule is not it. It is time for Members of Congress in both parties to intervene together and help provide the clarity and certainty EPA failed to achieve.