The Environmental Protection Agency (EPA) and the Army Corps of Engineers have released their final rule defining what they believe constitutes “waters of the United States.” This effort, in their own terms, is to provide clarity on what constitutes waters of the United States, and to protect streams and wetlands that we depend on for our health, communities, and economy.
In the wake of this ruling, have the federal agencies achieved their stated goal of clarity and protection, or, in the immortal words of the great baseball philosopher Yogi Berra, is this simply “déjà vu all over again?”
Some have argued that this new interpretation of U.S. waters will significantly expand federal control over land and water across the nation, and trigger a torrent of additional regulatory requirements and impediments to the wise use of our natural resources. The issues have been thoroughly evaluated by innumerable industry groups, land developers, law firms, consulting companies, and even various state and county farm bureaus around the country, who have provided their assessment of the staggering overreach of this new rule. Already, many Republicans and rural Democrats in congress are determined to roll the regulation back because they say agricultural and other interests fear the rule could halt virtually all development near water.
If past is prologue, the examples of past federal overreach are almost innumerable. The infamously termed “Migratory Bird Rule” proffered in 1986 was finally thrown out by the Supreme Court in 2001. The Migratory Bird Rule extended federal control over U.S. waters to include:
- Use of water as habitat by birds protected by the Migratory Bird Treaty Act;
- Use of water as habitat by federally protected endangered and threatened species; and most egregiously,
- Use of water to irrigate crops sold in interstate commerce.
In 2011, the EPA brought suit against a chicken farmer in West Virginia because chicken droppings violated the Clean Water Act. In this instance, the EPA asserted that because rain could carry dust, feathers, or small amounts of chicken manure to Mudlick Run—hundreds of yards away from the edge of the farmer’s property—a discharge permit would be required. Permitting and administrative costs, storm water pollution plans and ongoing sampling and chemical analysis of storm water would be needed by this small chicken farm. Ultimately, the EPA dropped its action against this individual chicken farmer.
Virginia and Fairfax County, Md., filed a lawsuit against the EPA in its efforts to regulate storm water as a runoff pollutant in 2013. The EPA argued that storm water itself can be regulated as a pollutant if there is an overabundance of it. In the end the courts ruled that the EPA had overstepped its jurisdiction.
As a requirement of developing a final rule defining waters of the United States, federal agencies are required to publish the proposal in the Federal Register in order to receive comments and input from the public. Gina McCarthy, an EPA administrator, noted that they received over 1,000,000 comments on the newly-proposed rule. The “proposed rule” was published in the Federal Register on April 21, 2014 in order to solicit comments, and comments were required on or before July 21, 2014. Nearly 90 percent of those comments favored the EPA’s proposed course.
But who was making those favorable comments? As reported in the New York Times (May 18, 2015), the EPA orchestrated a social media drive to solicit the supporting comments. The EPA argued that its efforts were merely designed to educate the public, but many critics view the EPA’s efforts more akin to using public resources for lobbying for its own position.
While the details over what does or does not constitute waters of the United States are debated and argued, the notion that clarity has been achieved by the federal government is rather opaque. Still not considered in this mix is the issue of a state’s role being usurped by a federal agency.
Congress enacted the Clean Water Act “to restore and maintain the chemical, physical, and biological integrity of the nation’s waters.” As stated in regard to the Clean Water Act (33 U.S. Code 125 – Congressional declaration of goals and policy): “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, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources, and to consult with the administrator in the exercise of his authority under this chapter.”
The jurisdictional turbulence created by the federal agencies by not intimately involving states in its decision is reflected by Wyoming Governor Matthew Mead (Fremont County’s Community News Stream, 5/27/2015): “I am disappointed at the lack of consideration for the law and procedure. The administrator ignored requests to consult with states and develop a rule that complies with the law and protects water. This rule has wide ranging impact. I am frustrated the EPA has again stepped out of the bounds of its authority and has disregarded the role and concerns of the state.”
It seems reasonable that the federal government’s approach to redefining waters of the United States can be looked at skeptically. Is this a channeling of environmental protection efforts towards a centralized, federal command and control bureaucracy? Have the federal agencies in this instance achieved their stated goals of clarity and protectiveness over our natural resources, land and water, or is this simply another case of déjà vu all over again. If past is prologue, there could be an extended legal battle to define the proper role of the federal government and its control over our daily activities, economy, and lives.