Administrator McCarthy’s justification of the rule making with “tangled up implementation of the law” implies a universal necessity amongst any and all who are associated with CWA (read: everyone) for clarifying the definition of the waters covered by the act. Especially throughout the last decade or so, uncertainty over the features afforded protection by the CWA has amplified thanks to ambiguity produced in court decisions like Rapanos v. United States, during which the justices failed to form clear collective opinion. The result is the infamous Interpretative Clause, which essentially enables jurisdiction on a case-by-case basis.
This inevitably complicated CWA implementation severely by enabling unsatisfied parties to question regulations more frequently. One such example of this is the “red tape” that businesses and farmers struggle with in areas that are considered merely “damp” or “moist” or “wet”. Wetlands ride the borderline between a land and water feature, and while they can hold promising to commercial ventures, they are also hailed as vital to nonhuman populations by environmentalists, and viewed as susceptible to degradation by conservationists.
Now, the EPA Administrator promises that the modified language “cuts red tape,” “gives certainty to businesses,” and, above all, “does NOT add to or expand the scope of waters historically protected under the Clean Water Act.” Nevertheless, and despite the assurance that the proposal had received “input from industries across the country,” the rulemaking does not evade backlash. It should come as no surprise that these worries are chiefly bred—and understandably so—by stakeholders in businesses who still crave clarity about what the regulators are. Farmers in particular have expressed concern that the tightening of the definition will actually increase federal jurisdiction over waters of contention, which is the reverse of the rule’s intent.
In case you’re curious, here’s the letter of intent to sue:
lawsuitepa.html |
"Any citizen may commence a civil action on his own behalf-- (1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the constitution) who is alleged to be in violation of (A) an effluent standard or limitation under this Act or (b) an order issued by the Administrator or a State with respect to such a standard or limitation, or (2) against the Administrator where there is alleged a failure of the Administrator to perform any act of duty under this Act which is not discretionary with the Administrator."
Clean Water Act, Section 505, U.S.C. 1365
So how effective will the citizen suit (particularly in consideration of our most recent forces of nature) be? Whatever the outcome, this case demonstrates that determining what is and isn’t protected under federal regulations goes beyond the matter of the language of definitions: the conversation will inevitably extend beyond the writing of the law to oversee how that law is maintained, developed, and enforced. Both ends of the chronological lawmaking process deserve our attention when policy is put into place.
Sources:
"Charles River" Region 1: EPA New England. United States Environmental Protection Agency. http://www.epa.gov/region1/charles/
Clean Water Act - Citizen Suits. United States Environmental Protection Agency. http://www.epa.gov/region6/6en/w/cwa505.htm
Documents Related to the Proposed Definition of "Waters of the United States" Under the Clean Water Act. United States Environmental Protection Agency. http://www2.epa.gov/cleanwaterrule/documents-related-proposed-definition-waters-united-states-under-clean-water-act
Glaze, Richard. "What does the proposed 'waters of the United States' rule mean to your business?" Inside Counsel. 26 January 2015. http://www.insidecounsel.com/2015/01/26/what-does-the-proposed-waters-of-the-united-states
Langer, Andrew. "How the EPA wants to use river regulations to regulate farmers". The National Review. 10 February 2015. http://www.nationalreview.com/article/398267/how-epa-wants-use-river-regulations-regulate-farmers-andrew-langer
Proposed "Definition of 'Waters of the United States' Under the Clean Water Act". United States Environmental protection Agency. http://www2.epa.gov/sites/production/files/2014-06/documents/proposed_regulatory_wus_text_40cfr230_0.pdf