What You Need to Know About the EPA/Corps Water Rule: It’s a Power Grab and an Attack on Property Rights

By Daren Bakst – Re-Blogged From http://www.Heritage.org

Abstract

In April 2014, the Environmental Protection Agency and the Army Corps of Engineers published a proposed rule—“Definition of ‘Waters of the United States’ Under the Clean Water Act”—that defines what waters are covered under the Clean Water Act (CWA). This rule, often referred to as the “Waters of the United States” (WOTUS) rule, could cover almost any type of water, giving the two agencies far greater power than authorized under the CWA. The proposed rule is complicated and vague, with little clarity coming from the agencies. There are four key points that should be known about the proposed rule: (1) it is extremely broad; (2) it is an attack on property rights; (3) it exceeds the broadest interpretation of Supreme Court precedent on CWA jurisdiction; and (4) it was developed through a flawed process. Unless Congress acts, this proposed power grab could soon become a reality—the two agencies recently sent their final rule to the Office of Management and Budget for its approval. Congress should require that the agencies withdraw the rule, and then Congress must define what is meant by “waters of the United States.”

On April 21, 2014, the Environmental Protection Agency (EPA) and the Army Corps of Engineers published a proposed rule—“Definition of ‘Waters of the United States’ Under the Clean Water Act” (CWA)—to define which waters are covered under the Clean Water Act (that is, jurisdictional waters).[1] The proposed rule could cover almost any type of water, giving the two agencies far greater power than authorized under the CWA. Unless Congress acts before the final rule is published, probably within the next few months, this proposed power grab could soon become a reality—the agencies recently sent their final rule to the Office of Management and Budget for its approval.[2]

The proposed “Waters of the United States” (WOTUS) rule is complex and vague, with little clarity coming from the agencies. EPA Administrator Gina McCarthy has simply dismissed some public concerns about the rule as “ludicrous” and “silly.”[3] The agency has used video[4] and social media[5] to gain public support for the rule, asking: “Do you choose clean water?” As if critics of the rule want dirty water. Four key points can help to cut through the confusion and better explain the proposed rule.

1. The Rule Is Extremely Broad.

The sheer overreach of the proposed rule is chilling. Both the EPA and Corps have consistently sought to acquire more power under the CWA. In just over a decade, the United States Supreme Court has twice struck down the agencies’ efforts to regulate more waters: in 2001, in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers,[6] and in 2006, in Rapanos v. United States.[7]

The proposed rule would assert jurisdiction over numerous types of waters, including “tributaries,” “adjacent waters,” and “other waters.” The definition for “tributaries” covers any water with a bed, banks, and ordinary high water mark that contributes flow, either directly or through another water, to a traditional navigable water, interstate water, territorial sea, or impoundment.[8] This definition is even broader than it sounds. As explained by the American Farm Bureau Foundation:

The agencies use the words “bed” and “bank” and “ordinary high water mark,” which sound like parts of a river or stream. In reality, though, the agencies’ explanation makes clear that those words just mean some kind of channel (land with higher elevation on each side of land with a lower elevation) plus any physical marks left by flowing water.[9]

The “tributaries” definition would include streams with ephemeral flow[10]—in other words, a stream that only exists after heavy precipitation.[11] A depression in the land could be a tributary if it sometimes has water flowing in it. For all practical purposes, the agency could be regulating land, not water. According to the agencies, a tributary could be “small” and a “substantial distance” from a jurisdictional water.[12] As defined, a tributary would cover almost any ditch, including man-made ditches.[13]

There is also a definition for “adjacent waters.” For the two agencies, “adjacent” does not simply mean next to jurisdictional waters. For example, if a body of water[14] is located anywhere in a floodplain of a jurisdictional water, it would be considered an adjacent water. The size and scope of this floodplain area are not clarified in the proposed rule. An isolated wetland or ephemeral stream in a floodplain could presumably be many miles away from the jurisdictional water and still be considered an adjacent water.

An adjacent water would also include “waters, including wetlands, separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like.”[15] (Emphasis added.) Once again, the agencies define “adjacent” to mean something far beyond the meaning of the word.

If a water does not fall under the definition of “tributaries,” “adjacent waters,” or another category, there is the catch-all “other waters” to assert jurisdiction. “‘Other waters’ are jurisdictional provided that they are found, on a case-specific basis, to have a significant nexus to” a traditional navigable water, interstate water, or territorial sea.[16]

Through this definition, an isolated water could presumably be deemed jurisdictional if the water by itself or in combination with “similarly situated waters in the region … significantly affects the chemical, physical, or biological integrity of a traditional navigable water, interstate water, or territorial sea.”[17] The agencies can lump a bunch of waters together until they get the required impact and there is no apparent limit to the size of the region. A water does not even have to be close to a “water of the United States” to be considered jurisdictional.[18]

2. The Rule Is an Attack on Property Rights.

The proposed rule could drastically infringe on property rights. Under the CWA, the federal government has jurisdiction over “navigable waters,” which the CWA further defines as “the waters of the United States, including the territorial seas.”[19] The proposed rule defines what is meant by “waters of the United States,” which is critical since that helps clarify the scope of the CWA. If a water is covered under the law, property owners could be required to secure costly and time-consuming permits to take actions that impact these waters.

In Rapanos v. United States, Justice Antonin Scalia cited a study[20] highlighting the following costs and delays for one of the major types of permits (Section 404 dredge and fill permits): “The average applicant for an individual permit spends 788 days and $271,596 in completing the process, and the average applicant for a nationwide permit spends 313 days and $28,915—not counting costs of mitigation or design changes.”[21]

At a National Farmers Union meeting, EPA Administrator Gina McCarthy stated: “Remember, being jurisdictional doesn’t mean a thing unless you want to pollute or destroy a jurisdictional water.”[22] This statement is misleading and insulting to property owners. It implies someone dumping toxic waste into a pristine lake. The reality is that the statute prohibits actions that do not even cause environmental harm.

Someone might need a permit for kicking some sand into a jurisdictional water.[23] Property owners could be required to secure a permit if there is a discharge of dredged material (material excavated or dredged from waters of the U.S.) or fill material (“material placed in waters such that dry land replaces water—or a portion thereof—or the water’s bottom elevation changes”).[24]

In other words, common activities, from farming to home building, could require a permit. Farmers, local governments, and others who would be affected do not “want to pollute or destroy a jurisdictional water,” but instead want to use their property for ordinary everyday uses. Many people simply want to use their property to make an honest living. A 2012 Supreme Court case, Sackett v. EPA,[25] highlights an egregious instance of regulatory enforcement whereby the EPA sought to impose fines of $75,000 a day

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