Rule Of Law: How Obama’s EPA Is Trying To Regulate Your Creek Beds And Ditches

Jessica Medeiros-Garrison President, Rule of Law Defense Fund
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Have you ever seen some water runoff in your yard during a hard rain and attempted to put a boat in it for an afternoon cruise?

I didn’t think so. Such a thing is almost as ridiculous as the continued actions by the Obama Administration, and such runoff isn’t far from the type of “water” it is trying to put under the EPA’s control. Earlier this year, the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (CoE) proposed a new regulation under the Clean Water Act (CWA) that would sweep in, as “waters of the U.S.,” millions of new miles of rivers and streams and, more alarming, areas of land that are dry most of the year and aren’t near a body of water.

The 86-page proposed rule, appended with almost 400 more pages of “data,” would put under the EPA and CoE’s jurisdictional thumbs such “waters” as a drainage ditch in Maricopa County, Arizona that carried water five times from 1993 to 2000 in 182 rain events for a total elapsed time of flow of 7.5 hours. A park ditch in Pinellas County, Florida, of the type in which you may see teenagers skateboarding, would cost taxpayers there over $31 million just to maintain for hypothetical “fishable, swimmable” uses under the proposed rule.

The administration is attempting this power grab despite the rule of law and precedent laid out by the Supreme Court in the 2006 case of Rapanos v. United States, which interpreted the term “waters of the United States” as including only relatively permanent, standing or flowing bodies of water. The definition refers to water as found in “streams,” “oceans,” “rivers,” “lakes,” and “bodies” of water “forming geographical features.” All of these terms connote continuously present, fixed bodies of water, as opposed to ordinarily dry channels through which water occasionally or intermittently flows.

As with numerous other federal affronts to the Tenth Amendment, Republican Attorneys General have stepped into the breach. Last week 11 Republican AGs, led by West Virginia AG Patrick Morrisey, Nebraska AG Jon Bruning, and Oklahoma AG Scott Pruitt; filed a thorough criticism of the EPA proposal, citing numerous legal maladies and constitutional violations. They were joined by their AG colleagues from Alabama, Alaska, Georgia, Kansas, Louisiana, North Dakota, South Carolina, and South Dakota; and six Republican Governors signed on, some of whom do not have a Republican AG defending their states’ authority to manage their natural resources.

“This proposed definition would result in millions of additional acres of land and water coming under federal jurisdiction and would create chaos and confusion for private citizens and landowners,” Attorney General Patrick Morrisey of West Virginia said. “Farmers and landowners should not have to worry that the federal government will show up at their door, claiming that they failed to go through a costly federal permit process before using property that had little to no water — such as a small pond, ditch, or often-dry streambed.”

Texas AG and Republican nominee for Governor of Texas Greg Abbott wrote in August a pointed letter to the EPA  and made clear that “[i]f the proposed rule is not withdrawn and is made final, then the State of Texas will have no choice but to challenge the rule in federal court — where it will surely be struck down as violating federal law, exceeding the agency’s statutory authority, and contravening the U.S. Constitution.”

Georgia Attorney General Sam Olens agrees, recently stating that the new rule “would drastically and unlawfully expand federal control over Georgia’s water resources.”

By the way, eight Democrat state AGs have joined together in a letter supporting their friends at the EPA and the Obama administration and urging them to keep the constitutional affront intact.

The EPA proposes six categories in which to fit these new “waters of the U.S.,” many of which employ terms like “neighboring,” “riparian,” and “tributary,” which have never been defined by Congress or court precedent. Even more alarming is the seventh, catch-all category that includes, “on a case-specific basis, other waters … [that] have a significant nexus to a traditional navigable water.” Imagine the very real scenario this would replicate over and over in every state: A private landowner with a body of water, or even a dry field, ditch, or creek bed on his property, would have to rely on the ad hoc evaluation of a federal field agent to determine if the land is under the EPA’s authority and the laborious permitting processes of the CWA. Forget about the time and money spent to get this answer and, if affirmative, to comply. Such a subjective test by a single bureaucrat would bring a ubiquitous, long-lingering cloud over the market value of the property and the marketability of the property for economic development.

The EPA effectually is sending the rule of law up the proverbial creek. Stay tuned as Republican AGs and their allies fight to throw it a paddle and return it to safer, quieter harbors.