US Environmental Protection Agency’s new Waters of the United States Rule: connecting law and science

Abstract

The question of the kinds of water bodies federal and state agencies may regulate under the federal Clean Water Act (CWA) has reached the US Supreme Court 3 times without clear resolution. The Waters of the United States (WOTUS) rule adopted by the Environmental Protection Agency and the Army Corps of Engineers (collectively, the agencies), based in part on a recent synthesis of science regarding the connectivity of surface waters (USEPA 2015), seeks to reduce regulatory uncertainty by clarifying which waters are subject to CWA regulation. The rule makes progress in that regard, but has been challenged in court on grounds that the agencies seek jurisdiction over waters that are not properly covered in the CWA, and members of Congress have taken steps to overturn the rule legislatively. The rule’s legality depends on: 1) the breadth of federal constitutional authority over “navigable” waters, 2) the text and meaning of the CWA, and 3) the relationship between the proposed regulation and the science used by the agencies to support the rule. From a constitutional perspective, the courts will have to determine whether the agencies have demonstrated that the waters over which jurisdiction is asserted have a sufficient effect on traditional navigable waters to be subject to federal regulation under the Commerce Clause of the US Constitution. From a statutory perspective, the courts will have to determine whether the scientific evidence shows that those types of water bodies fall within the intent and scope of the CWA as adopted by Congress. From a scientific perspective, to defend the rule in court the agencies will have to show that the synthesis report and other relevant scientific information adequately demonstrate that regulation of various categories of upstream waters is necessary to ensure protection of traditional navigable waters over which the agencies clearly have regulatory authority, and other types of waters over which the agencies have jurisdiction under the Constitution and the text of the CWA.

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