Big problems are looming for endangered species and the landowners who harbor them due to a combination of the Environmental Protection Agency’s huge expansion of “waters of the United States” it regulates under the Clean Water Act, and efforts to expand the Endangered Species Act to encompass entire watersheds.
Under the Clean Water Act, the federal government can regulate discharge of pollutants into what are known as “navigable waters.” But over the decades the Environmental Protection Agency has expanded this to include isolated wetlands and pools of water unconnected to navigable waters, and tiny streams that can only be navigated by a toy boat, not the type of adult-sized boat the for which the legislation was originally intended and common sense dictates. This regulatory expansion has caused significant hardships for many landowners who find, among other things, that low-lying areas that only hold a few inches of water when it rains, or seasonal streams that are dry for much of the year, are subject to regulation under the Clean Water Act — all of which is enforced with threats of jail time and huge fines.
Now the Environmental Protection Agency has extended the regulatory reach of the Clean Water Act to encompass even more waters that are not navigable, including: irrigation ditches if any portion was dug from a watercourse that flows eventually, but not necessarily directly, into a navigable water; any watercourse or water drainage so long as it has a bank, bed and high water mark; and any water feature, including those that are not navigable, within ¾ of a mile of a so-called “jurisdictional water” as long as the feature meets any one of nine extremely broad “significant nexus” criteria.
The Endangered Species Act is similarly far-reaching. Under the Act the federal government can prevent people from damaging or destroying habitat for protected species even if the habitat is significant distance from where the species lives, or even if the habitat is unoccupied but of a suitable type. Combining the broad reach of the Clean Water and Endangered Species Acts is where things can get truly expansive.
Many species, including most of the 750-plus under consideration for listing under the Endangered Species Act due to a 2011 lawsuit settlement, are based in freshwater aquatic habitats, which means anything that can affect not only water quality but also water quantity can be regulated if it is deemed to harm a protected species. The epicenter for this is the Southeastern U.S., which contains 374 of these lawsuit settlement species, all of which are dependent on freshwater aquatic habitats.
But these species are spread throughout the country, including in many unlikely places, such as Nevada, which contains 54 species, almost all of which are based in freshwater aquatic habitats. Of these Nevada species, 5 have been listed and 5 found not to warrant listing, which leaves 44 species in the “hopper” for potential listing in the future. All of these freshwater aquatic species around the country are likely going to result in huge conflicts over water in the coming years.
The Center for Biological Diversity, one of the two litigants involved in the 2011 lawsuit settlement, is clearly trying to use these freshwater aquatic species to target any human activities that affect water quantity and quality. “Water withdrawal and diversion,” are a threat to these species, according to the center. Furthermore, the center claims “The Clean Water Act is not effective at preventing activities within a watershed which negatively impact water quality, and the health of aquatic systems needs to be evaluated and regulated on a watershed-wide scale.”
The key word is “watersheds” because usually regulation under the Endangered Species Act relates to discrete parcels of land and water. Now, however, lawsuit mills like the Center for Biological Diversity are seeking to use the Act to encompass vastly more land and water under a watershed-wide standard. Add to this the new “waters of the U.S.” definition and the Endangered Species Act is put on steroids because under the Act federal agencies are mandated “to ensure that any action they authorize, fund, or carry out” does not harm listed species, according to the statute. This provision creates a regulatory “nexus” that gives the two agencies that implement the Endangered Species Act, the U.S. Fish and Wildlife Service and National Marine Fisheries Service, enormous power over the decisions and regulatory programs of other federal agencies, such as the Environmental Protection Agency implementing the Clean Water Act, including the new definition of “waters of the U.S.”
The new “waters of the U.S.” definition is going to be the subject of lawsuits seeking to stay its implementation in the next forty-five days and trying eventually to overturn the definition altogether. Whether these efforts are successful remains to be seen, but they may be of diminished significance if a new watershed-wide standard is applied to the hundreds of already-listed and yet-to-be-listed endangered species that are based in freshwater aquatic habitats. After all, the Center for Biological Diversity has been a very aggressive and successful litigant under the Endangered Species Act, and the group has made clear that it is seeking to use the Act to regulate anything that affects water quantity and quality.
If a watershed-wide standard becomes the new normal for the Endangered Species Act, it could be more onerous than the Clean Water Act, even under the new definition of “waters of the U.S.,” because the Clean Water Act is only supposed to regulate water quality, not water quantity. Thus the Endangered Species Act could become a defacto “Water Quality and Quantity Act.”
The sad irony of the type of punitive approach to conservation embodied in the Endangered Species Act is that it is ultimately self-defeating. Effective conservation depends on private lands, which is where most endangered species are found, and the landowners who control these lands. Making life more difficult for America’s landowners through more and more onerous regulations will only serve to alienate the very people whose willing cooperation is necessary for successful endangered species conservation. Unfortunately, it appears life is only going to get more difficult for America’s landowners and endangered species as they are impacted by ever-expanding regulations that are more about politics and ideology than protecting the environment.