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The debate over the definition of "Waters of the United
States" goes on and on. I tend to think that
Kennedy's "significant nexus" test was a reasonable
approach to making sense of a vague statute. I also think
that the Obama administration definitional rule was supported by
good science.
What we sometimes lose track of in the ongoing debate is that
the definition – whatever we choose – matters, that
ordinary citizens' use of their property is affected by how the
Corps applies the rule, and that the current system fails to
provide anything near the level of reasonable certainty that
we're entitled to expect.
Exhibit A? Orchard Hill Building Company v. US Army Corps of
Engineers, in which the 7th Circuit Court of
Appeals just vacated a District Court judgment and ordered the
Corps to revisit its determination that the plaintiff's
wetlands constitute Waters of the United States. Orchard Hill
originally asked for a jurisdictional determination in 2006.
It's now 2018. The case still isn't over, because the
Corps has yet another shot at determining whether the wetlands at
issue are in fact jurisdictional.
Would it be rhetorical excess to argue that delays such as this
help explain why President Trump is in fact President Trump?
May I at least suggest that such delays undermine respect for the
regulatory system?
One final note, just to confirm that I haven't gone over to
the dark side. One of the arguments that the Obama
administration made in support of the WOTUS rule was precisely that
it would provide a lot more certainty and thus eliminate many such
delays. I happen to think that they were right – though
it's also true that some of the presumptions in the Obama WOTUS
rule were challenged from the left as not being sufficiently
protective.
Sometimes I think that the perfect is the enemy of the
good. Sometimes I think that our entire political system is
the enemy of the good. And I'm an optimist!
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