Connecting the Law and the Science: A Legal Perspective on the Rule

The scope of Clean Water Act (CWA) jurisdiction over water bodies has been the subject of legal controversy for decades, and has reached the U.S. Supreme Court several times without clear resolution. Indeed, litigation under the existing statute and regulations has done more to “muddy the waters” than to clarify CWA jurisdiction. The new proposed Waters of the United States rule seeks to reduce regulatory uncertainty by clarifying which waters are (and are not) covered by the CWA, and to make it easier for landowners, agencies and the courts to ascertain whether the CWA applies to specific water bodies. Although the proposed rule is a strong step in the right direction in that regard, once finalized it is likely to be challenged in lower courts and to end up in the Supreme Court once again. Analysis of the rule’s legality involves a combination of several difficult and interrelated factors, including the breadth of federal constitutional authority over “navigable\u27 waters, the text and meaning of the CWA, and the relationship between the proposed regulation and the science relied on by EPA to support the rule