Far-reaching “Waters of the United States” rule could be the most significant EPA regulation you have never heard about: opinion

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12985371-mmmainIn 1972, Congress enacted the Clean Water Act (CWA) to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” The federal government’s legal authority to regulate water is largely derived from the Constitution’s Commerce Clause, which theoretically limits the government’s jurisdiction to the type of navigable waterways where such commerce occurs. Sadly, the federal government is rarely content with any limitation placed on its regulatory authority.

Although the CWA defines “navigable waters” as “the waters of the United States, including the territorial seas,” federal regulators further define the “waters of the United States” to cover traditional navigable waters and all other waters that could affect interstate or foreign commerce. The current regulatory definition opens up more waters to CWA coverage but still attempts to track Congress’s Commerce Clause authority.

Now the EPA and Army Corps of Engineers are taking advantage of a particularly unclear Supreme Court ruling in Rapanos v. United States. Narrowly interpreted, the 2006 Rapanos decision gives the EPA regulatory authority over wetlands “with a continuous surface connection” to navigable waterways. Read broadly, the Rapanos decision gives the EPA authority under the CWA to regulate water with a mere “significant nexus” to navigable waterways.

As a result of the Supreme Court’s lack of clarity, the EPA and Army Corps of Engineers have proposed to expand the coverage of the CWA in an exceptionally far-reaching manner. Many conservatives, agriculture groups, and even the U.S. Small Business Administration are calling for the proposed rule to be withdrawn.

On October 8, 2014, Alabama Attorney General Luther Strange joined other state attorneys general opposing the new definition. The joint letter noted that many of “the waters and lands covered [by the proposed rule] are entirely outside of Congress’ authority under the Commerce Clause, such as non-navigable intrastate waters that lack any significant nexus to a core water, trenching upon state authority, including in areas of non-economic activity.”

The Alabama Farmers Federation (ALFA) has also raised concerns about the impact of the proposed rule on Alabama. “The government overreach from this rule would extend beyond farms to affect businesses, homes, schools, churches – any place built on land where water runs through after a heavy rain,” said ALFA president Jimmy Parnell. “This was never the intent of the Clean Water Act, and this bypassing of Congress should not be allowed.”

Baldwin County farmer Hope Cassebaum echoed Parnell’s concerns. “Farmers don’t need any more regulations than what we have now,” said Cassebaum. “It’s sad because we already try to be the best stewards of the land that we can be.”

Elmore County farmer Richard Edgar proudly highlighted that his family has worked with the USDA’s Natural Resources Conservation Service for generations. “We have some of the first, and still well-maintained, parallel terraces which are best for the environment,” said Edgar.

At the same time, Edgar considers the EPA’s move to be more about federal control than true environmental concern. “My children are the sixth generation on this land,” he said. “We’re going to take care of our farmland because we have a legacy and hope for the future. We don’t need government telling us how to take care of it.”

The CWA has been a major success in cleaning up our national waters, but federal authority under the act is not without limit. The EPA and Army Corps of Engineers are pressing the boundaries of their federal jurisdiction to their breaking point, and Alabamians would be wise to pay attention.