New EPA water rule is all wet

Josiah Neeley R Street Institute
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What’s the difference between a river and a dried out creek-bed? If the federal government gets its way, the answer to that question may soon be: not much. The Environmental Protection Agency is currently accepting public comment on a joint rule proposal with the U.S. Army Corps of Engineers that would greatly expand federal jurisdiction over water.

Passed in 1972, the federal Clean Water Act was designed to ensure the water quality of the rivers and streams of America’s surface waters. Under the CWA, anyone who wants to discharge a pollutant into “navigable waters” must first be granted a permit by the Corps of Engineers. Turning a spade of dirt on dry land without a permit has been found to violate the Corps of Engineers regulation of “dredge and fill” activity in “navigable waters.” Falling under the CWA’s permitting requirements can be devastating. A 2002 analysis found that getting a permit took an average of 788 days and cost over $270,000.

Federal regulatory jurisdiction under the CWA extends to “navigable waters” and not beyond. Initially, to count as a navigable water, a body of water had to be, well, navigable. A trickling stream or a piece of soggy ground didn’t count. Subsequent interpretations, however, gradually broadened the scope of the term until it became virtually limitless. Federal jurisdiction was extended to include storm sewers, stretches of desert that could flood during heavy rains, and even isolated waters that could be used as a habitat by migratory birds.

As a result of this expansion, thousands of property owners woke up one morning to find that their land had been converted into navigable waters under the CWA. Some property owners have even gone to prison for typical land use activities on their own private property. In 2007, Mike and Chantell Sackett purchased a plot of land in rural Idaho on which they planned to build a house. Shortly after beginning to clear the land, the Sacketts received notice from the EPA that it had deemed their property to be part of a wetland, and as such that any modification of the land without the proper permits could result in fines of as much as $75,000 a day.

Eventually, the Supreme Court reigned in these expansive interpretations in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineer and Rapanos v. United States. Yet while the Court agreed that past interpretations had gone too far, the Justices could not agree on the right definition, leading to a multiplicity of competing legal tests.

With this new rule, the federal government appears to be exploiting this ambiguity to try to reclaim some of the ground it lost in Rapanos and SWANCC. The proposed rule expands federal jurisdiction to include tributaries (even if intermittent or ephemeral), adjacent waters, and any water or wetland which can significantly affect the waters of the United States, even if it is not considered significant by itself.

The new rule is bad news not only to landowners, but also for state sovereignty. While the CWA is officially supposed to “protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution,” in practice federal jurisdiction over intrastate waters inevitably erodes state authority. Implementing CWA programs can also cost the states money. To protect the state’s interests, the federal government is required to consult with states before creating new rules that would impose such burdens, something that hasn’t happened in this case.

It’s possible that public outcry could convince EPA to back off somewhat on this issue (at least for now). But as Justice Alito noted in Sackett, “[r]eal relief requires Congress to do what it should have done in the first place: provide a reasonably clear rule regarding the reach of the Clean Water Act.” So long as Congress allows EPA to usurp its constitutional right to make law, neither state authority nor private property will ever be secure.

Josiah Neeley is a Policy Analyst in the Armstrong Center for Energy & the Environment with the Texas Public Policy Foundation.