Waters of the United States” — the ultimate power grab

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Comment from FA: “Centralized control over water and the abolition of private property rights to water are a core purpose of Agenda 21 policy making. The examples of a thrust toward this end from both federal and state governments are accelerating.”

The Clean Water Act pro­hibits cer­tain dis­charges to “nav­i­ga­ble waters” with­out a fed­er­al per­mit.  The Act defines “nav­i­ga­ble waters” as “waters of the Unit­ed States” which the Corps and EPA orig­i­nal­ly took to mean tra­di­tion­al nav­i­ga­ble waters that could be used in inter­state com­merce.  This is impor­tant because the Clean Water Act is based on the com­merce pow­er.  By def­i­n­i­tion, reg­u­la­tion of waters under the Act must be nec­es­sary to and in fur­ther­ance of inter­state com­merce.  But it didn’t take long before the agen­cies start­ed push­ing the enve­lope on fed­er­al juris­dic­tion claim­ing reg­u­la­to­ry author­i­ty over wet­lands and oth­er non­nav­i­ga­ble waters that had noth­ing to do with com­merce, let alone inter­state commerce.

Things came to a head when the Corps assert­ed juris­dic­tion over small, remote pools that were whol­ly iso­lat­ed from tra­di­tion­al nav­i­ga­ble waters.   The case went to the U.S. Supreme Court in SWANCC v. Corps (2001).  The court chas­tised the Corps for set­ting up a mov­ing tar­get for its juris­dic­tion and for­bade the Corps from reg­u­lat­ing “iso­lat­ed water bod­ies.”  In sup­port of this deci­sion the court observed the reg­u­la­tion of non­nav­i­ga­ble, intrastate waters would read the term “nav­i­ga­ble” right out of the Act and raise con­sti­tu­tion­al ques­tions about the scope of the com­merce pow­er and State’s Rights.

Unfor­tu­nate­ly, the case did not change agency prac­tice much.  The EPA and Corps con­tin­ued to reg­u­late non­av­i­ga­ble, intrastate waters and even expand­ed their juris­dic­tion claim­ing they could now reg­u­late any water with a hydro­log­i­cal con­nec­tion to tra­di­tion­al nav­i­ga­ble waters.  This lead to fed­er­al reg­u­la­tion of typ­i­cal­ly dry land fea­tures such as arroyos and wash­es in the desert as well as ditch­es, drains and cul­verts hun­dreds of miles from tra­di­tion­al nav­i­ga­ble waters.

In 2006, in a Supreme Court case called Rapanos v. Unit­ed States, PLF chal­lenged the agen­cies’ juris­dic­tion as over­broad.  A major­i­ty of the court agreed with PLF that the gov­ern­ment had  over­reached and the Corps and EPA could not reg­u­late a water mere­ly because it has a hydro­log­i­cal con­nec­tion to down­stream nav­i­ga­ble waters.

How­ev­er, in April of this year, the Corps and EPA pro­posed a high­ly con­tro­ver­sial rule redefin­ing the term “waters of the Unit­ed States” in a way that con­tra­dicts the SWANCC and Rapanos deci­sions.  Under the new rule, these agen­cies seek to reg­u­late “iso­lat­ed water bod­ies” and any oth­er water body with a hydro­log­i­cal con­nec­tion to tra­di­tion­al nav­i­ga­ble waters, the very waters the Supreme Court said the agen­cies could not regulate.

These agen­cies have rede­fined the term “waters of the Unit­ed States” so broad­ly that it cov­ers vir­tu­al­ly any wet spot in the coun­try, includ­ing ditch­es, drains, inter­mit­tent streams, ponds, impound­ments, prairie pot­holes, and large buffer areas along every water­course.  Only minor water fea­tures are exclud­ed from fed­er­al con­trol, such as arti­fi­cial pools or ponds, but only if they are in dry, upland areas.

As we doc­u­ment in our com­ments oppos­ing the rule, the Corps and EPA’s self-serv­ing rede­f­i­n­i­tion of “waters of the Unit­ed States” is undoubt­ed­ly the largest expan­sion of pow­er ever pro­posed by a fed­er­al agency. It would far exceed fed­er­al juris­dic­tion, usurp the pow­er of the States to man­age local land and water resources, nul­li­fy con­sti­tu­tion­al lim­its on fed­er­al author­i­ty, and con­flict with Supreme Court prece­dent.  You can read our detailed analy­sis of the rule here.

This pro­posed rule is patent­ly unrea­son­able and should be amend­ed or with­drawn.  If it is not, you can count on PLF being in the courts again to hold overzeal­ous bureau­crats account­able to the rule-of-law.