EPA Attempts to Grab More Power Under the Clean Water Act

Published December 19, 2013

A long-simmering dispute over which bodies of water the U.S. Environmental Protection Agency and the Army Corps of Engineers may regulate has entered a new phase, with EPA moving closer to issuing a new rule that could vastly expand its powers under the Clean Water Act.

Largest-Ever Expansion of Power
The White House Office of Management & Budget (OMB) has been reviewing a draft of the rule since September. The draft is based in large part on an EPA report, “Connectivity of Streams and Wetlands to Downstream Waters.”

Supported by agricultural groups, beef producers, small rural landowners, and grassroots citizens, congressional Republicans criticized EPA’s proposed rule change.

“This could be the largest expansion of EPA regulatory power ever,” House Science, Space, and Technology Committee Chairman Lamar Smith (R-TX) said in a press statement. “If the draft rule is approved, it would allow the EPA to regulate virtually every body of water in the United States, including private and public lakes, ponds, and streams.”

Smith has demanded EPA disclose the scientific data on which the draft proposal is based.

Small, Intermittent Bodies of Water
EPA claims it is merely interested in “clarifying the uncertainties” regarding federal jurisdiction over certain bodies of water arising from two Supreme Court decisions.

In Rapanos v. United States (2006), the Supreme Court rejected the Corps of Engineers’ claim the Clean Water Act (CWA) gave it virtually limitless jurisdiction over small, intermittent bodies of water. The court ruled, instead, the statute gives EPA and the Corps of Engineers jurisdiction over “those relatively permanent, standing or continuously flowing bodies of water” forming geographic features that in ordinary parlance would be understood as streams, oceans, rivers, and lakes. All waters with a “significant nexus” to “navigable waters” are covered under the CWA, the court ruled.

What constitutes a “significant nexus” has been open to a wide range of interpretations.

An earlier high court ruling, Solid Waste Agency of Northern Cook County v. Army Corps of Engineers (2001) struck down a controversial procedure used by the Corps and EPA to use the flight paths of migratory birds to claim jurisdiction over isolated wetlands under Section 404 of the CWA.

The confusion over the CWA’s jurisdiction resulting from the two Supreme Court decisions prompted Rep. James Oberstar (D-MN) to introduce legislation in 2007, and again in 2009, that would have given the federal government jurisdiction over virtually all waters and wetlands in the United States, no matter how temporary or small. Oberstar’s bills got nowhere, and he lost his seat in Congress in the 2010 midterm elections in the wake of voter anger over his attempt to dramatically expand EPA and Army Corps jurisdiction.

Once it became clear Congress wasn’t going to give EPA and the Army Corps their desired expansion of powers, EPA began work on an “interim guidance” that would do the same thing. In September of this year, EPA moved toward a formal rulemaking.

Attempt to Circumvent Congress
Under the draft being reviewed by OMB, EPA and the Corps would assume jurisdiction over all tributaries, regardless of size and flow, and all lakes, ponds, and wetlands within any floodplain.
The National Pork Producers Council issued a statement saying the EPA draft would extend federal jurisdiction over vast tracts of private land, including bodies of water with no connection to navigable waters. The group fears farmers will have to apply for permits to apply manure, fertilizer, and pesticides on their crops.

“What EPA is passing off as ‘clarification’ is yet another effort by the agency to circumvent Congress and expand its regulatory writ by administrative means,” Craig Rucker, executive director of the Washington-based Committee for a Constructive Tomorrow, said.

“Farmers, ranchers, and businesses of every description will find themselves pulled into a larger EPA scheme to dictate watershed management across the country by unelected and unaccountable Washington bureaucrats,” Rucker explained.

Bonner R. Cohen, Ph. D. ([email protected]), is a senior fellow at the National Center for Public Policy Research.