PLF testifies on WOTUS rule

By M. Reed Hopper

One of the most contentious federal regulations published in recent decades is the ill-fated and  ill-legitimate “waters of the United States” or “WOTUS” rule that was issued by the Corps and EPA over the objections of Corps experts who argued the EPA misrepresented the science and misapplied the law.  The political, scientific, and legal divide over this rule is still as hot today as it was when the rule was foisted on the public in June 2015. That rule expands federal jurisdiction under the Clean Water Act to almost all standing or flowing waters in the U.S.  (not to mention huge swaths of land surrounding those waters) and deserves close scrutiny by Congress, the courts, and the new Administration. Fortunately, the rule is getting that scrutiny. Two courts stayed the 2015 WOTUS rule after determining the rule would likely not withstand judicial review for lack of scientific support and failure to comply with the law, including PLF’s successful 2006 Rapanos decision limiting the scope of the act. In recognition of this fact, the President issued an executive order directing the EPA to revise the rule in keeping with the rule-of-law, economic realities, and Supreme Court precedent. And just yesterday, I testified on the rule at a sharply divided House Committee on the Environment. My written testimony  focuses on the history of the rule; problems with the rule relating to illegal inclusion of all “tributaries,” overuse of “adjacent waters,” lack of scientific support, the prohibited inclusion of “isolated water bodies,” failure to provide notice and opportunity for public comment, and constitutional conflicts. My testimony also addresses the courts’ stay of the rule, the effect of the Executive order calling for revision of the rule, and finally offers a proposal for improving the rule and curtailing overzealous enforcement of the act...more