One sign of how misguided the proposed regulation redefining “waters of the United States” is that approximately 900,000 people submitted comments in the rule-making record. At least some of those were activists who applauded the extraordinary power grab by the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) to regulate puddles and hundreds of millions of acres of land where water may sometimes flow.
But most Americans don’t write to agency bureaucrats to say “please subject my land to extremely expensive, confusing, and subjective regulatory restrictions.” Instead, many thousands raised legal objections or expressed grave concerns about the impact of the rule.
The public can’t evaluate most comments to the controversial draft rule, however, because EPA and the Corps have claimed that “only” 19,353 of them are substantive enough to merit placing on their rulemaking website. Even if that is right, it is hard to believe that the agencies can seriously consider and fairly address even 19,353 “substantive” comments in the few months that would allow a final rule to be issued this spring. Some comments contain over 100 pages of technical and hydrological information. The Pacific Legal Foundation, among others, pointed out in its comments opposing the rule how the agencies’ interpretation of their jurisdiction violates the Clean Water Act and would be unconstitutional even if the Act did authorize it.
Such procedural concerns, including a lack of meaningful consultation with state and local officials, as well as the agencies’ substantive overreach will be examined this Wednesday at a rare, joint hearing of the House Transportation and Infrastructure Committee and the Senate Environmental and Public Works Committee. The House Transportation Committee conducted three previous hearings on the controversial draft rule. The joint hearing on February 4 will pay special attention to the concerns raised by state and local officials.
That focus will help highlight that the proposed rule is not just horrible for farmers, ranchers, and rural residents — who have borne the brunt of the current rule’s overreach, but for urban and suburban residents as well.
The proposed rule redefines federal waters so broadly that it covers virtually any wet (or occasionally wet) spot in the country, including seasonal puddles, intermittent streams, ponds, impoundments, prairie potholes, and large “buffer areas” of land adjacent to every watercourse. Moreover, the proposed rule’s coverage of storm drains and roadside ditches is a good example of how the federal agencies have more than rural interests in their sights.
The Supreme Court has twice rejected the agencies’ extreme view of their jurisdiction, but that doesn’t seem to have deterred them. In SWANCC v. Corps (2001), the Court chastised the Corps for continuously expanding its jurisdiction and forbade the Corps from regulating “isolated water bodies” that were not connected to traditional navigable waters. That did not stop the Corps and EPA from regulating most of the same nonnavigable waters, and they also dreamed up new theories to regulate land that might affect navigable waters. Thus, the agencies regulate normally dry gullies in the desert as well as ditches and culverts hundreds of miles from traditional navigable waters.
In 2006, in a Supreme Court case called Rapanos v. United States, the Pacific Legal Foundation won a victory to establish again that the federal agencies could not regulate something merely because it has a hydrological connection to downstream navigable waters. The Supreme Court specifically questioned the regulation of “storm drains” and “roadside ditches.”
Yet, under the draft rule, the agencies purport to exclude only those storm drains and “ditches that are excavated wholly in uplands, drain only in uplands, and have less than perennial flow” or “that do not contribute flow, either directly or through another water, to a traditional navigable water, interstate water, the territorial seas, or impoundment.” (79 Fed. Reg. 22218.) Very few ditches satisfy those conditions.
Almost all county roadside ditches would be covered, and municipal utility officials have previously testified that storm drainage systems that have been exempted from the most expensive (section 404) permitting regime may not be excluded under the draft rule. Some officials worry that their operating budgets and planning process could be wrecked seeking permits from EPA for modifications, improvements, or additions to their stormwater drainage systems or roadside ditches.
But subjecting local government projects to federal control is not the only reason for concern. Under EPA’s and the Corps’s theory, any land is potentially subject to regulation if it is “adjacent” (undefined) to waterways or if it has a substantial effect on downstream waters when aggregated with all other land of its type in a given “ecoregion.” At some future date, EPA may tell urban and suburban homeowners in a particular watershed whether or how much fertilizer they may apply to their lawns since rain washes some fertilizer into storm drains and hundreds of miles later it may flow into a navigable waterway.
EPA’s and the Corps’s basic response to such concerns is “trust us,” but their past track record provides no reason for trust. And such a power grab is in direct contravention of congressional policy “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.”
If the proposed rule is not amended or withdrawn, PLF will again file suit to hold overzealous regulators accountable. But that takes time. For now, only Congress and the states can prevail on the administration to start over and follow the law.
Todd Gaziano is the Executive Director of Pacific Legal Foundation’s D.C. Center and Senior Fellow in Constitutional Law. He can be reached on Twitter @ToddGaziano.