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.