A vast land grab to ‘protect’ water

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William Perry Pendley, President, Mountain States Legal Foundation

William Per­ry Pend­ley, Pres­i­dent, Moun­tain States Legal Foundation


In Novem­ber, com­ments closed on a pro­pos­al by the Envi­ron­men­tal Pro­tec­tion Agency and the U.S. Army Corps of Engi­neers to rede­fine “waters of the Unit­ed States,” as set forth in the Clean Water Act of 1977. While Sen. Edmund Muskie, Maine Demo­c­rat, author of the 1977 law, required 88 pages for his entire statute, this spring’s Fed­er­al Reg­is­ter notice ran 370 pages, not count­ing appen­dix­es, one of which hit 300 pages alone. Lit­tle won­der the new “wet­land” rules have gen­er­at­ed con­tro­ver­sy and a like­ly Supreme Court case.

Over the years, the EPA and the Corps of Engi­neers read “waters of the Unit­ed States,” and hence their author­i­ty to reg­u­late pri­vate prop­er­ty, both broad­ly and ambigu­ous­ly. Unfor­tu­nate­ly for landown­ers in their crosshairs, their inter­pre­ta­tion is rem­i­nis­cent of Jus­tice Pot­ter Stewart’s views regard­ing hard-core pornog­ra­phy, “I know it when I see it.” Worse yet, such a sight­ing is fol­lowed by a cease-and-desist order vio­la­tion of which results in fines of tens of thou­sands of dol­lars a day, and dou­ble that if the vio­la­tion is “will­ful.” Worst of all, landown­ers could not chal­lenge those orders because they remained “unen­forced” until violated.

For exam­ple, when the EPA declared arid lands owned by Dr. Lar­ry Squires of Hobbs, New Mex­i­co, “waters of the Unit­ed States” because birds land­ed in ponds cre­at­ed by spo­radic heavy rains, Dr. Squires chal­lenged the order; but, his law­suit was dis­missed as untime­ly. A fed­er­al appeals court ruled his inabil­i­ty to ques­tion whether his lands were “wet­lands” with­out pay­ing hun­dreds of mil­lions of dol­lars in fines or going to jail was not “con­sti­tu­tion­al­ly intol­er­a­ble” giv­en that it would “under­mine the EPA’s reg­u­la­to­ry author­i­ty.” For­tu­nate­ly, in 2012, the Supreme Court unan­i­mous­ly end­ed this abuse in a law­suit by the Pacif­ic Legal Foundation.

Nonethe­less, tar­get­ed landown­ers did reach the Supreme Court. In 1985, decid­ing at which point “water ends and land begins,” the Court upheld a def­i­n­i­tion that includ­ed wet­lands that “actu­al­ly abut on” tra­di­tion­al nav­i­ga­ble waters. In 2001, the Court held that “non-nav­i­ga­ble, iso­lat­ed, intrastate waters,” even those used by migra­to­ry birds (remem­ber Dr. Squires) were not with­in the Clean Water Act.

In 2006, rul­ing on whether the Clean Water Act includ­ed intrastate wet­lands adja­cent to non-nav­i­ga­ble trib­u­taries of nav­i­ga­ble waters, the Supreme Court vacat­ed the rules of the Army Corps of Engi­neers. On behalf of a four-mem­ber plu­ral­i­ty, Jus­tice Antonin Scalia required “con­tin­u­ous sur­face con­nec­tion to bod­ies that are ‘waters of the Unit­ed States’ in their own right,” but Jus­tice Antho­ny M. Kennedy, while con­cur­ring in strik­ing down the rules, demand­ed “a ‘sig­nif­i­cant nexus’ to waters that are or were nav­i­ga­ble in fact or that could rea­son­ably be so made.”

In 2007, the EPA and the Corps of Engi­neers respond­ed to the court’s rul­ings and in late 2008, after the receipt of 66,000 com­ments, issued new guid­ance on iden­ti­fy­ing “waters of the Unit­ed States.” Then, in 2011, the two agen­cies pro­posed guid­ance that expand­ed sig­nif­i­cant­ly the reach of the Clean Water Act, includ­ing over ver­nal pools, prairie pot­holes, nat­ur­al ponds and playa lakes. In response to 230,000 com­ments, many of which demand­ed a for­mal rule-mak­ing, the agen­cies issued that pro­pos­al in April.

Liv­ing up to its rep­u­ta­tion for cre­at­ing, as lib­er­al law pro­fes­sor Jonathan Tur­ley put it, “a con­sti­tu­tion­al tip­ping point,” the Oba­ma administration’s new rules con­sti­tute a his­toric land grab. Con­trary to Jus­tice Kennedy’s instruc­tion, the rules: extend to all waters (not just wet­lands) and all waters adja­cent to non-nav­i­ga­ble inter­state waters; cre­ate a juris­dic­tion­al con­cept “sim­i­lar­ly sit­u­at­ed waters” by mis­quot­ing the jus­tice; and ignore his demand that an agency “estab­lish nexus on a case-by-case basis when it seeks to reg­u­late wet­lands based on adja­cen­cy to non-nav­i­ga­ble tributaries.”

Worse yet, in vio­la­tion of the Constitution’s com­merce clause, they assert author­i­ty over waters that are nei­ther instru­men­tal­i­ties nor chan­nels of inter­state com­merce and that do not sub­stan­tial­ly affect inter­state commerce.

Over its past six years, the Supreme Court has ruled unan­i­mous­ly against the Oba­ma administration’s posi­tion on 20 occa­sions. These new wet­land rules may make 21.

• William Per­ry Pend­ley, a lawyer, is pres­i­dent of Moun­tain States Legal Foun­da­tion in Denver