An expansive new rule lets Washington regulate any creek or pothole.
While retrenching abroad, the Obama Administration remains committed to expanding Washington’s footprint at home. Behold the Environmental Protection Agency’s rewrite Wednesday of the Clean Water Act that extends federal jurisdiction over tens of millions of acres of private land.
The Clean Water Act limits the federal government to regulating the “navigable waters of the United States” like the Colorado River or Lake Michigan. In 1986 the EPA expanded that definition to seize jurisdiction over tributaries and adjacent wetlands. Now it is extending federal control over just about any creek, pond, prairie pothole or muddy farm field that EPA says has a “significant nexus” to a navigable waterway.
The agency defines waters as “significant” if they are “located in whole or in part within 100 feet of the ordinary high water mark,” or, alternatively, within the 100-year floodplain and 1,500 feet of the high water mark of waters already under the government’s jurisdiction. That’s already a lot of water, but there’s more.
The EPA acknowledges that the “science available today does not establish that waters beyond those defined as ‘adjacent’” to these “significant” waters should be regulated. But forget science. The agency says its “experience and expertise” show there are “many” other waters that could have a significant downstream effect. Thus the EPA establishes an additional standard for significance that covers just about anything that’s wet.
So the new rule says the feds can also regulate waters within the 100-year floodplain and 4,000 feet of their claimed bailiwick or land features like prairie potholes and vernal pools that “in combination” have a significant effect. A pothole on farmer Dan’s land may not affect downstream waters, but the EPA could still regulate Dan’s pothole if regulators determine that prairie potholes collectively do.
The sad irony is that the EPA is exploiting an opening created by a Supreme Court case that overturned a federal regulatory abuse. In its 4-1-4 split ruling in Rapanos v. U.S. in 2006, the Army Corps of Engineers had sought to throw a Michigan landowner in prison because he didn’t obtain permits to move dirt on a sometimes-saturated piece of land, which was connected to a drain, which ran into a shallow creek, which flowed into the Kawkawlin River, which emptied into Saginaw Bay and Lake Huron.
In a sharp rebuke, Justice Antonin Scalia, joined by Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito, explained that “waters of the United States” could not possibly apply to the man’s land that was 11 to 20 miles away from the nearest “navigable” waterway.
The waggish Justice Scalia noted that the Corps’s expansive reading of “waters of the United States” could extend to “the entire land area of the United States,” which “lies in some drainage basin, and an endless network of visible channels furrows the entire surface, containing water ephemerally wherever the rain falls.” He shouldn’t have suggested the idea.
Loath to set a limiting principle, Justice Anthony Kennedy argued that federal agencies could regulate wetlands on a “case-by-case basis” with a “significant nexus” to navigable waterways. That is, wetlands which “either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’”
Justice Kennedy’s muddled opinion deprived lower courts and property owners of clarity to navigate the Clean Water Act, but it gave the EPA an opening as wide as the Mississippi to regulate. The EPA notes that under “current regulations and practice following these recent decisions, almost all waters and wetlands across the country theoretically could be subject to a case-specific jurisdictional determination.”
As Justice Scalia predicted, Justice Kennedy’s opinion tipped “a wink at the agency, inviting it to try its same expansive reading again.” And so EPA has, though now with Justice Kennedy’s opinion as legal cover. This will make it harder for property owners to challenge the government in court.
The new rule is stirring opposition among farmers, manufacturers, home builders and energy companies that claim it could deny them productive use of their property. This would seem to violate the Constitution’s takings clause. In March, five Democratic Senators supported a nonbinding amendment to block the EPA’s rule-making. Earlier this month, 24 House Democrats joined 237 Republicans by voting to pre-empt the land-water grab.
Congress should try use its regulatory review powers to overturn the new rule, forcing Members to show whose side they’re on—the average landowner’s or the Washington water police.