Thursday, August 6, 2015
Final 'Waters Of The U.S.' Rule Is More Overreach By EPA
Final 'Waters Of The U.S.' Rule Is More Overreach By EPA Guest post written by Todd Gaziano and M. Reed Hopper Mr. Gaziano is executive director of the Pacific Legal Foundation’s DC Center. Mr. Hopper is a principal attorney with the Foundation. On June 29, the Supreme Court invalidated the Environmental Protection Agency’s regulation on power plant emissions, stating that the EPA’s interpretation of its authority was not even “rational,” let alone reasonable. But the decision came too late for power plants in certain states. Many spent billions of dollars complying with the illegal rule; others closed forever. But don’t expect the EPA to admit its error. The EPA is frequently wrong, but never in doubt. (Disclosure: Mr. Hopper successfully represented John Rapanos in Rapanos v. United States and is the lead counsel in the Foundation’s lawsuit on behalf of Washington Cattlemen’s Association and eight other plaintiffs to overturn the water rule.) Also on June 29, the EPA and Army Corps of Engineers published their final rule in the Federal Register redefining “waters of the United States” subject to federal control under the Clean Water Act (CWA). It is as expansive and illegal as we warned last year. At least ten lawsuits, including ours, have been filed in the past few weeks to stop the rule. It’s worth explaining what’s at stake. EPA expanded its jurisdiction to a degree that would make a normal bureaucrat blush The CWA prohibits the discharge of pollutants without a federal permit into “navigable waters,” defined as “waters of the United States.” But the Act expressly retains the States’ preeminent role to protect non-navigable waters: “It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution.” Despite several CWA amendments, Congress never changed the definition of “navigable waters” or the States’ responsibility to regulate most waters in America. Over the years, however, the Corps and EPA expanded their jurisdiction to a degree that would make a normal bureaucrat blush. For example, the CWA does not directly authorize federal regulation of “wetlands,” but the agencies developed a Kafkaesque, nationwide wetland regulatory regime based on the theory that the placement of clean sand or gravel in seasonally dry areas is a discharge of a pollutant into “navigable waters.” The Supreme Court approved federal regulation of wetlands that physically abut navigable-in-fact waterways where it is unclear where the land ends and the water begins, but rejected the agencies’ other efforts to regulate undefined “neighboring wetlands,” minute tributaries, man-made ditches and drains, and even isolated water bodies with no hydrological connection to navigable waters whatsoever. Repeated rebukes by the High Court have made no difference Repeated rebukes by the High Court, including the last two initiated by our Foundation, have made no difference. In 2001, the Supreme Court rejected the agencies’ regulation of isolated, non-navigable waterbodies that read the term “navigable waters” out of the Act. In 2006, the Court also rejected the agencies’ sweeping assertion that it could regulate any water with a hydrological connection to a downstream navigable-in-fact water. And, in 2012, the Supreme Court unanimously condemned the EPA practice of issuing crippling fines and threats of criminal prosecution to homeowners without providing proof the CWA was violated and without affording the homeowners a judicial hearing to dispute EPA’s jurisdiction over their property. As Justice Alito observed: the “reach of the Clean Water Act is notoriously unclear” under EPA’s expansive reading such that “any piece of land that is wet at least part of the year” may be covered by it, “putting property owners at the agency’s mercy.” Instead of accepting those pronouncements and demonstrating some restraint, the agencies’ current rule redefining “waters of the United States” greatly exceeds jurisdictional claims the High Court has already rejected. Compared to the draft we criticized last fall, the final rule made some cosmetic changes for political consumption, as well as some substantive changes, but the jurisdictional interpretations not only go well beyond any authorized by the CWA, they would be unconstitutional if Congress tried to confer such authority. For example, the final rule purports to exempt “puddles,” which is politically savvy. But even this concession is undermined since the rule expressly covers some water-filled depressions many people think of as puddles, including isolated “prairie potholes” in the Midwest, “vernal pools … located in parts of California” and various other small ponds if they meet certain conditions. Virtually nothing escapes the rapacious control of the federal government under the newly minted definition of “waters of the United States” The agencies assert categorical jurisdiction over “navigable waterways”—now more broadly defined—then add tributaries of any size that “contribute flow,” either directly or indirectly, to a navigable river, lake or sea, even if that flow is miniscule. That includes tiny creeks, streams, ditches, channels and many normally dry gullies. The agencies then add several other new and vague categories. “Adjacent waters” and various other waters, which include massive amounts of land, are either automatically covered or covered on a case by case basis (depending on factors the agencies will determine later); they include land within a 100-year floodplain or 4,000 feet of any tributary or other jurisdictional waters. Ultimately agency field offices will determine whether particular property is subject to regulation and permitting, including those with “a significant nexus to a [covered] water.” Under the “significant nexus” test, agency personnel may combine a wet spot at issue with “other similarly situated [not defined] waters in the region” to determine if together they affect “the chemical, physical, or biological integrity” of the downstream water, and any one of nine broad factors can trigger inclusion such as their combined effect on “runoff storage” or “species habitat.” The test is so expansive that it is hard to conceive of any wet area, if combined with all other supposedly similar areas in the region, which would not meet the definition. And that is the point. Virtually nothing escapes the rapacious control of the federal government under the newly minted definition of “waters of the United States.” Adding enormous uncertainty to the regulatory scheme Inclusion of the 100-year flood plain as “navigable waters” is an especially brazen land grab. And we do mean land, not waters. This necessarily includes vast amounts of land that are dry 99.9 years out of 100. Because flood plain maps are not fixed or definite, agency bureaucrats can assert sweeping authority over many new areas of the Country. With all of these categories and expansive tests, the agencies seek to control almost all the water in America and much of the land. The agencies’ propaganda campaign about the need for “clean water” is a sad ploy to justify their overreaching. The agencies cynically claim the rule will close dangerous gaps that left the source of drinking water for “117 million Americans … vulnerable to pollution.” Yet that directly contradicts other assertions that the rule only “clarifies” prior authority and doesn’t expand the agencies’ jurisdiction. Both claims can’t be true, except in Alice’s Wonderland. Moreover, the States and other federal laws regulate drinking water more directly, so no drinking water was ever “unprotected.” The Corps and EPA also repeatedly assert that their rule simplifies and makes jurisdictional determinations “more predictable,” but that claim is belied by the hundreds of pages of dense, explanatory material published with the rule. The 100-year-flood-plain gambit and the “significant nexus” test alone add enormous uncertainty to the regulatory scheme. And make no mistake, the uncertainty is not a bug but a feature to maximize bureaucratic power. The fight is over federal control, not simplicity or safety The agencies’ propaganda campaign is just lipstick on an exceptionally dangerous and aggressive hog. The regulatory doubletalk masks the real battle. This fight is over federal control, not simplicity or safety. That’s why 36 states opposed the rule; only seven supported it. The water rule threatens liberty and must be stopped, which is why we and others have filed suit to overturn it. The cases may be consolidated, but either way, several of us seek to stop enforcement of the rule until our cases are decided. Unlike the EPA emissions rule, let’s hope the courts agree to enjoin the rule until a final ruling on its validity is rendered. America doesn’t need more economic damage from an illegal rule.