Drafting regulations is an enormous challenge, to say the least. I wrote some of the first drafts of the 2015 Waters of the United States (WOTUS) rule when I was at the Environmental Protection Agency (EPA), and it was one of the most challenging assignments I have ever had as a lawyer. Make the rule too simple, and gigantic loopholes emerge. Make it too specific, and compliance becomes overly burdensome. The right spot in the middle is an elusive target. Every new word in a regulation must be tested against reality and checked for internal inconsistencies and unintended consequences, and changes beget more drafting problems. Throw in litigation risk, policy compromises, and politics, and getting it all right can drive one mad. The ditch exemptions in the 2015 WOTUS rule and the proposed Trump administration replacement rule are a good example of this kind of drafting problem, and two recent decisions out of the Ninth Circuit, Pacific Coast Fed. of Fishermen’s Assoc.’s v. Glaser, 2019 WL 4230097 (9th Cir. 2019) and Nakia’ikai v. Nakatani, 2019 WL 2997774 (D. Haw. 2019) demonstrate that it is not a hypothetical one.
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