Administration Moves to Regulate Water

Posted by Chad Vorthmann on Apr 29, 2011 in EPA, Water | 2 comments

The Environmental Protection Agency issued “guidance” yesterday that lays out the agency’s determination of what waters of the United States fall under the protection of the Clean Water Act. It is a landmark in a longstanding battle over the extent of the Clean Water Act’s authority.

The “guidance” document, now open to a 60 day comment period, would expand the federal definition of what waters can be regulated under the Clean Water Act. Administration officials said yesterday that the guidance would help clarify that streams and streams that flow part of the year are subject to federal regulation if they have a “physical, chemical or biological connection to larger bodies of water downstream and could affect the integrity of those downstream waters.”

“You cannot protect a navigable waterway if all the tributaries to that waterway are unprotected,” EPA Administrator Lisa Jackson said on a conference call introducing the guidance. “The question becomes, how far upstream is under jurisdiction.”

The agriculture, oil and homebuilding industries are coming out quickly and forcefully against the guidance. Many groups including Farm Bureau and the National Cattlemen’s Beef Association (NCBA) say that the question of just how far upstream is under jurisdiction has already been defined by a 2006 Supreme Court case, Rapanos v. United States. In the case, justices overruled federal attempts to use the Clean Water Act to assert control over wetlands on private land.

Don Parrish, senior regulatory specialist with the American Farm Bureau Federation, said the proposed new guidance threatens farmers and ranchers across the country because they would add new federal regulatory control over farms and ranches. He said the proposed rules are a clear infringement on private property rights and would likely have little impact on water quality.

“This guidance should shock all of agriculture because it creates an overly broad view of ‘waters of the U.S.’ and it gives the federal government authority to regulate any body of water anywhere,” Parrish said. “Plus, it gives the federal government new authority to dictate land-use decisions. If this new regulatory guidance is put on the books, farmers and ranchers will face more Clean Water Act permitting requirements, more federal control of their land and they will be strangled with even more red tape.”

 

Battle Lines

Many groups rushed to condemn the proposed guidance saying it expands federal authority beyond the scope of the Clean Water Act and more than one Supreme Court decision. They also point to EPA’s failure to follow proper processes for implementing formal regulations.

American Farm Bureau President , Bob Stallman said the guidance, “would take an overly broad view of ‘waters of the U.S.’ It would serve as a road map for EPA and the Corps to designate nearly all water bodies, and even some dry land, as subject to federal regulations that dictate land-use decisions. If unchecked, the guidance would lead to more Clean Water Act permitting requirements, more litigation and less economic growth at a time when our nation needs it most.”

Stallman also criticized the Administration for circumventing procedure when implementing new rules. He says that the proper procedure for putting executive branch policy into place is to write a formal rule, or put ideas before Congress to act on.

The current proposal “circumvents that process, implements controversial new policy and expands the federal government’s regulatory reach without public input or Congress’ authorization,” he said.

NCBA Deputy Environmental Counsel Ashley Lyon says that the guidance provides EPA and Army Corps of Engineers field staff with overly broad jurisdiction to implement Clean Water Act rules on a case-by-case basis.

“Through vague definitions and broad interpretations laid out in this draft guidance, EPA and the Corps have once again shown little regard for the practical implications of their actions or Congress’ intentions under the CWA,” she said.

Environmental groups such as the Sierra Club praised the action.

 

Congressional Disapproval

The guidance document has not been free from opposition prior to it’s unveiling on Wednesday. In a letter addressed to EPA Administrator Lisa Jackson, 170 members of Congress voiced their opposition to the guidance. The letter, penned by Rep. Bob Gibbs (R- Ohio) and Rep. Tim Holdren (D- PA), calls into question the Administration’s action in light of two Supreme Court cases limiting the scope of the Clean Water Act. It also maintains the guidance is a way for the Administration to bypass the formal rulemaking process.

“We are extremely concerned that this ‘guidance’ amounts to a de facto rule instead of mere advisory guidelines,” wrote Reps. Gibbs and Holdren.

In a statement following the release of the proposed guidance, Rep. Gibbs expressed his disappointment that the Administration ignored the members’ concerns and issued the guidance apart from the formal rulemaking process.

“Instead, the Administration scrambled to repackage the leaked document as an open and transparent product by adding a 60 day comment period to the draft guidance. It is clear that they have already decided how they will implement their radical agenda, and yet they are pretending this document is still under construction,” Gibbs said.

He also pointed out that while the EPA issued a 60 day comment period, it is under no obligation to take any of the comments into account before issuing the final guidance.

Under the rulemaking process, agencies must account for public input by amending proposed rules before final publication. The Clean Water Act guidance being used by EPA is not constrained by the same rules.

 

Judicial Limitations

The scope of the CWA has been limited in the past by the Supreme Court who acknowledged that federal jurisdiction does not apply to every drop of water in the country.

In both the 2001 Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers and the 2006 Rapanos v. United States, justices hold that the definition of waters that may be regulated under the CWA are limited and well defined.

In the 2001 decision, the Court holds that the statutory definition (and therefore the extent of federal jurisdiction) of ‘waters of the United States’ is limited to navigable waters and that the CWA did not address the question of nonnavigable and isolated waters.

The Rapanos decision expanded the scope of federal jurisdiction but still constrained federal power over water. The majority opinion reaffirmed that the Clean Water Act covers only navigable waters and property with significant connections to them — or a ‘significant nexus’ as defined by Justice Anthony M. Kennedy in his opinion.

Kennedy defines significant nexus as water that ‘either alone or in combination with similarly situated lands in the region, affect[s] the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable’ in a fashion that is not ‘speculative’ or ‘insignificant.’

Decried by environmental groups, who oppose limits on federal power over water, the ’01 and ’06 opinions were targeted in last year’s H.R. 5088, America’s Commitment to Clean Water Act. The bill, offered by former Congressman Jim Oberstar (D- Minn.), would have removed ‘navigable’ from the CWA, thereby bypassing limitations set by the Supreme Court. The bill was rejected by Congress.

It is believed by many in opposition to expanded jurisdiction that EPA’s guidance is in direct response to H.R. 5088’s failure in Congress. They say the proposal is not based on scientific necessity, but in response to failed attempts by the legislature to expand the scope of the CWA using H.R. 5088. They point to the EPA’s action on carbon emissions and green house gasses after failed attempts to pass Cap and Trade legislation, as a precedent for the Administration’s strategy.

The comment period for the new guidance is open for 60 days. Farm Bureau will submit comments against the rule as soon as it is published to the Federal Register.