Energy and Environment News this week reported on a letter from the GOP congressional leadership urging EPA to scrap its proposed Waters of the United States guidance document, noticed for public comment last May. No surprises there. The proposed guidance takes the view that the scope of jurisdictional waters of the United States (and wetlands) subject to regulation under the Clean Water Act should be interpreted as broadly as the Supreme Court’s split Rapanos decision allows. That is, wetlands and tributaries should be subject to Clean Water Act permitting requirements if they satisfy either the Scalia plurality’s “relative permanence” standard for surface water connection or Justice Kennedy’s concurring test that covers waters with a substantial ecological nexus to navigable in fact waters.
But the GOP letter also “commends” EPA and the Corps on their “recent announcement” that it will proceed directly to a rulemaking and a regulation rather than issuing a final guidance document. I can’t find an Advance Notice of Proposed Rulemaking or other announcement that EPA and the Corps have changed course here and propose a rulemaking rather than guidance.
Except for the inevitable delay, and the prospect of judicial review, I think a rulemaking is in fact the better way to go. By revising the existing decades-old regulatory definition of waters of the United States, EPA and the Corps are more likely to provide some clarity and certainty to the issue — a rulemaking will receive Chevron deference and will be upheld so long as it is a “permissible interpretation” of the Clean Water Act. And a regulation, once upheld by the Courts, will have the force of law in a way that EPA/Corps “guidance” would not.