Watch Out for That Puddle, Soon It Could Be Federally Regulated

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FA Note:  This Op-Ed appeared in the Wall Street Jour­nal Decem­ber 7, 2014. The authors are Reed Hop­per and Todd Gaziano, with Pacif­ic Legal Foundation. 

PLFThe EPA wants to rede­fine ‘the waters of the Unit­ed States’ to mean vir­tu­al­ly any wet spot in the country.

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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 Office audit, 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.