Puddle control

Especially in rainy Oregon, the EPA's new power grab over water could be devastating.  

Wall Street Journal, December 8, 2014 -- Commentary
Watch Out for That Puddle, Soon It Could Be Federally Regulated

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

By M. REED HOPPER And TODD F. GAZIANO

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 non-com­mer­cial ac­tiv­ity within a sin­gle state.

Within a few years, how­ever, the two agen­cies claimed reg­u­la­tory author­ity over wet­lands and other non-nav­i­ga­ble wa­ters that had no sig­nif­icant con­nec­tion to in­ter­state commerce. The Supreme Court has twice re­jected these claims.

In SWANCC v. Army Corps of En­gi-neers (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 dryland 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.