The Swamp Stomp
Volume 15, Issue 26
On Monday June 29, 2015 the final Waters of the US Rules were published in the Federal Register. They become effective on August 28, 2015. At that point they are the law of the land.
There has been much discussion about these new rules, their legitimacy and the need for them. The major proponents argue that clean water is at risk without these rules. The opponents argue that this rule is nothing more than a federal land grab.
The President through his agencies has argued that these rules are needed to clear up any confusion of what the federal government should and should not regulate. The assumption is that an unregulated water is a dirty water. Chief among the confused is the Supreme Court. One of the major goals of this rule is to correct the SWANCC decision that limited federal jurisdiction over isolated waters. However, with thousands of pages of documents used to develop this rule I doubt that this goal has been achieved.
Are these rules good or bad? At this point that is a matter for the courts to decide. There are some highly political bills being floated around Congress. However, they lack the support need to overturn the rules. The main issue is that they would face a likely Presidential veto should they pass both chambers.
One of the more amusing aspects of the opposition is to threaten to take away funding for the implementation of the rule. At issue is how does one fund a definition? The rule is now published so there is no longer any issue of disseminating the information. Perhaps the Agencies are not allowed to talk about 80 FR 37053 – 37127. Can they still mention waters of the United States? If so, which definition? If they use the old one, are they breaking their own rule? If so, can a third party bring suit against the Agencies for not following a published rule? Are we the regulated, still bound by the new published rule even if the Agencies can’t implement it?
Politics aside, (good luck with that) these rules are real and there are some very significant changes. What is unfortunate is that the Agency personnel will most likely be denied any training on these new rules. That is something Congress can withhold. This could prove problematic when it comes time to argue for or against jurisdiction of a water. Lack of training often results in poor decisions.
There is also one other date in the rule that is significant. The date for Judicial Review is July 1, 2015. I believe that corresponds with the date the Supreme Court goes into recess. If you will recall as established by Marbury v. Madison (1803) the Supreme Court has the responsibility to decide if any law rule or regulation is constitutional. July 1, 2015 is the date that that review would begin. Is it a coincidence that this rule came out during the Court’s summer recess? The Supremes will not be back until October.
We have posted a full version of the new rules on our website. You can see them here or download the full document here.
Have a great week!
– Marc