02.20.2015 1

Clean Water Act regulatory whack-a-mole hurts farmers

By Robert Romano

paper boatThe Environmental Protection Agency (EPA) and the Army Corps of Engineers are at it again, seeking to regulate every puddle, creek, and ditch in America as “navigable waters” under the terms of the Clean Water Act — even though you probably couldn’t navigate a paper boat through them.

Starting in April, under the Definition of “Waters of the United States” Under the Clean Water Act regulation, “waters of the United States” will now include “Traditional navigable waters; interstate waters, including interstate wetlands; the territorial seas; impoundments of traditional navigable waters, interstate waters, including interstate wetlands, the territorial seas, and tributaries, as defined, of such waters; tributaries, as defined, of traditional navigable waters, interstate waters or the territorial seas; and adjacent waters, including adjacent wetlands.”

In addition, “the agencies propose that ‘other waters’ (those not fitting in any of the above categories) could be determined to be ‘waters of the United States’ through a case-specific showing that, either alone or in combination with similarly situated ‘other waters’ in the region, they have a ‘significant nexus’ to a traditional navigable water, interstate water, or the territorial seas. The rule would also offer a definition of significant nexus and explain how similarly situated ‘other waters’ in the region should be identified.”

Finally, the agencies have an expansive view of bodies of water beyond just aquatic systems, writing in a not-so-innocuous footnote, “The terms do not refer solely to the water contained in these aquatic systems, but to the system as a whole including associated chemical, physical, and biological features.”

To which, Pacific Legal Foundation’s M. Reed Hopper and Todd Gaziano complain in the Wall Street Journal, “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.”

Indeed, the entire atmosphere is about 4 percent water. In some organisms, their bodies can be composed of as much as 90 percent water. In humans, it’s about 60 percent. Can those be regulated too as a “biological feature” of an aquatic system?

Hopper and Gaziano note, “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…”

Here Hopper and Gaziano are referencing SWANCC v. Army Corps of Engineers (2001) and Rapanos v. United States (2006), which respectively found that the Army Corps could not regulate “isolated water bodies” that were not connected to traditional navigable waters and that agencies, per Hopper and Gaziano, “could not regulate wetlands merely because they have a hydrological connection to downstream navigable waters.”

Undeterred, EPA and the Army Corps have moved forward with their rulemaking, and the implications for property owners everywhere, including farmers and ranchers, are simply breathtaking.

The issues the regulation raises for Congress are fairly profound. For example, last year the House of Representatives passed HR 5078 which bars implementation of the rule or anything “substantially similar.”

The trouble is, whether subsequent rulemakings would be “substantially similar” would undoubtedly be left up to judicial interpretation, meaning more rounds of regulatory whack-a-mole on the Clean Water Act would be in order for generations to come.

This underscores the problem itself, which is Congress’ reliance on the goodwill and common sense of regulators in drafting these rules, such as under the Clean Water Act, an approach which has proven to be colossal failure, resulting in nearly two decades of litigation over just how far the law goes. It is the administrative state defined.

This year, it is high time for Congress to cut the root of the problem, which is the broad nature of the Clean Water Act itself. Perhaps the reason the agencies keep coming forward with rules beyond the scope of what legislators ever intended is because Congress authorized them to write them.

If members want to address the issue head on, the solution is severely to restrict that authority to draft expansive regulations under the Clean Water Act, and the Clean Air Act for that matter. No less than the property interests of every single American, including farmers and ranchers, are at stake.

Robert Romano is the senior editor of Americans for Limited Government.  

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