By M. Reed Hopper And Todd F. GazianoUpdated Dec. 7, 2014 5:23 p.m. ET
Earlier this year the Environmental Protection Agency and Army Corps of Engineers proposed a rule redefining the “waters of the United States” that are subject to regulation under the Clean Water Act. The two agencies recently finished collecting public comments on their draft rule and are deciding how to proceed. Their best course is to abandon the rule or anything like it. Here’s why:
EPA Administrator Gina McCarthy wrote in Huffington Post in March that the draft rule would clarify the meaning of the relevant terms in the law without expanding federal jurisdiction and promised it would “save us time, keep money in our pockets, cut red tape, [and] give certainty to business.” None of this is true.
The Clean Water Act of 1972 prohibits discharges into “navigable waters” without a federal permit, defining “navigable waters” as “waters of the United States.” Initially the Army Corps and EPA interpreted waters of the U.S. to mean those that could be used as channels of navigation for interstate commerce. This reading is logical and necessary because the Clean Water Act is authorized by Congress’s power to regulate interstate commerce—which as Chief Justice John Marshall wrote in Gibbons v. Ogden (1824), includes the transport of passengers and goods across state lines but not the commercial or noncommercial activity within a single state.
Within a few years, however, the two agencies claimed regulatory authority over wetlands and other nonnavigable waters that had no significant connection to interstate commerce. The Supreme Court has twice rejected these claims.
In SWANCC v. Army Corps of Engineers (2001), the court forbade the Army Corps from regulating “isolated water bodies” that were not connected to traditional navigable waters. Nevertheless, the Army Corps and EPA have largely ignored or circumvented the ruling with new interpretations. They claimed that they could regulate anything with a “hydrological connection” to traditional navigable waters—including normally dry-land features such as arroyos in the desert as well as ditches and culverts hundreds of miles from traditional navigable waters.
In Rapanos v. United States (2006), the Pacific Legal Foundation challenged the agencies’ jurisdictional reach again. A majority of the justices ruled that federal agencies could not regulate wetlands merely because they have a hydrological connection to downstream navigable waters.
Nevertheless, the agencies now seek to regulate isolated water bodies and any “other water” with a hydrological connection to traditional navigable waters—the very waters the Supreme Court said they could not regulate. The draft rule redefines “waters of the United States” so broadly that it covers virtually any wet—or occasionally wet—spot in the country, including ditches, drains, seasonal puddle-like depressions, intermittent streams, ponds, impoundments, prairie potholes, and large “buffer areas” of land adjacent to every waterway.
Specifically, the draft rule would allow for federal regulation of any pond, stream or ditch that has significant effects on downstream waters—and lets the agencies aggregate the effects of similar features across an entire “ecoregion,” covering thousands of square miles, such as the Central Great Plains. Certain ditches and artificial pools are excluded from federal control—but only if they are in dry, upland areas.
Federal bureaucrats already exercise considerable discretion. For example, according to a 2004 Government Accountability Officeaudit, federal officials in the same Army Corps office disagree on whether a particular water feature, occasional wet spot, or land adjoining a waterway is subject to regulation under the existing rules. The GAO concluded “the definitions used to make jurisdictional determinations” were “vague.” This situation fosters uncertainty and undermines economic activity and development.
The proposed rule magnifies the problem. It starts by including all tributaries in the nation (e.g., your backyard creek), and then authorizes federal officials to decide on a case-by-case basis if any “other waters” or land should be regulated. The proposed rule also asserts that federal jurisdiction is not limited to water contained in “aquatic systems” but covers the “associated chemical, physical, and biological features” of any aquatic system “as a whole.”
What isn’t a chemical, physical or biological feature of an aquatic system as a whole? Does that cover an entire ecoregion? Probably, since agency bureaucrats generally have discretion to interpret and apply their own definitions. Rather than clarify federal jurisdiction, as promised, the proposed rule introduces vastly greater uncertainty.
By any fair reading, the proposed rule would federalize virtually all water in the nation, and much of the land, in direct contravention of Supreme Court precedent and express congressional policy in the Clean Water Act “to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use . . . of land and water resources.” It is patently unreasonable and should be amended or withdrawn.
If the rule is adopted in its present form, the Pacific Legal Foundation and others will again take these two agencies to court. But that takes time. Instead, Congress, the states, and the American people should prevail on the administration to follow the law.
Mr. Hopper, an attorney with the Pacific Legal Foundation, represented John Rapanos in the Supreme Court case of Rapanos v. U.S. Mr. Gaziano is the executive director of the Foundation’s D.C. Center.