EPA Defies Supreme Court, Proposes Unprecedented Water Regulations

Published July 5, 2014

The U.S. Environmental Protection Agency proposed new regulations that would give the agency control over more privately owned land than ever before. EPA issued the regulations despite the Supreme Court ruling twice in recent years that federal environmental officials had too expansively defined its Clean Water Act powers.

EPA Ignores Supreme Court Rebukes
EPA claims the Supreme Court’s decisions in SWANCC v. U.S. Army Corps. of Engineers (2001) and Rapanos v. United States (2006) created confusion regarding its newly proposed regulations. In SWANCC, the Court ruled federal environmental officials could not use what was known as the “migratory bird rule” to assert jurisdiction over isolated bodies of water. In Rapanos, the Court ruled federal environmental officials could not prohibit a private landowner from filling sand in an isolated wetland. In both cases, the Court emphasized the need for federal environmental officials to show the body of water at issue meets the Clean Water Act’s definition of “navigable waterway” that triggers federal jurisdiction.

In its newly proposed regulations, EPA claims dry streambeds that only occasionally fill with water qualify as navigable waterways under the Clean Water Act. EPA also expands its definition of what qualifies as navigable. Further, EPA claims small ponds and water holes can qualify as navigable waterways even if they are not navigable and are not physically connected to navigable waters. Instead, EPA claims federal environmental officials can view multiple such small bodies of water in combination, even if they are not physically connected.

Property rights advocates point out the EPA’s proposed rule would allow it to regulate far more bodies of water than it tried to regulate before being rebuked by successive Supreme Court decisions. They also wonder how EPA can in good faith “clarify” the Supreme Court decisions rebuking federal government overreach by treating the decisions as EPA victories and invitations to expand EPA’s powers to an unprecedented extent.

Farm Groups Voice Opposition
“As a result [of EPA’s proposal], permit requirements that apply to navigable waters would also apply to ditches, small ponds, and even depressions in fields and pastures that are only wet when there is heavy rain,” the American Farm Bureau Federation noted in the Gilroy Dispatch. “If landowners could not get permits to do things like build fences and use pesticides to control bugs and weeds—something that would be far from guaranteed—farming and ranching would be much more costly and difficult. Other landowners, too, would face roadblocks to things they want to do, such as build a house or plant trees. American Farm Bureau and California Farm Bureau are both calling on Congress to prevent this expansion.”

“Congress, not federal agencies, writes the laws of the land,” said American Farm Bureau President Bob Stallman in a press statement. “When Congress wrote the Clean Water Act, it clearly intended for the law to apply to navigable waters. Is a small ditch navigable? Is a stock pond navigable? We really don’t think so, and Farm Bureau members are going to be sending that message.”

“This, in my career of farming, is the most scary and frightening proposition that I have witnessed,” Iowa Farm Bureau Federation president Craig Hill told the Des Moines Register.

Congress Limited EPA’s Reach
“When Congress wrote the Clean Water Act, Congress limited the Act’s application to ‘navigable waters’ for good reasons,” said Jay Lehr, science director for the Heartland Institute, which publishes Environment & Climate News. “Among the reasons, Congress did not want EPA bullying farmers over small depressions in their land that occasionally hold rainwater, bullying people who dig a ditch to help drain their land, and using the smallest of streams and micro-bodies of water to restrict property use. EPA is attempting to stand the Clean Water Act on its head as it continues to seek more money and power.”

“EPA says farmers should take the agency at its word that it will not enforce these regulations in a heavy-handed manner. In light of EPA’s longstanding record of heavy-handedness, arrogance, and abuse, however, farmers know better,” said Lehr.

“Private individuals would never attempt to misapply the statute so blatantly, because there are tremendous expenses involved with fighting hopeless legal cases. EPA, however, relies on its bottomless pockets full of taxpayers’ money to bully landowners and force them alone to bear the financial burdens of challenging EPA,” Lehr explained.

James M. Taylor ([email protected]) is managing editor of Environment & Climate News.