The Environmental Protection Agency
(EPA) and the Army Corps of Engineers are at it again, seeking to regulate
every puddle, creek, and ditch in America as “navigable waters” under the terms
of the Clean Water Act — even though you probably couldn’t navigate a paper
boat through them.
Starting in April, under the Definition
of “Waters of the United States” Under the Clean Water Act regulation, “waters of the United States” will now include
“Traditional navigable waters; interstate waters, including interstate wetlands;
the territorial seas; impoundments of traditional navigable waters, interstate
waters, including interstate wetlands, the territorial seas, and tributaries,
as defined, of such waters; tributaries, as defined, of traditional navigable
waters, interstate waters or the territorial seas; and adjacent waters,
including adjacent wetlands.”
In addition, “the agencies propose
that ‘other waters’ (those not fitting in any of the above categories) could be
determined to be ‘waters of the United States’ through a case-specific showing
that, either alone or in combination with similarly situated ‘other waters’ in
the region, they have a ‘significant nexus’ to a traditional navigable water,
interstate water, or the territorial seas. The rule would also offer a definition
of significant nexus and explain how similarly situated ‘other waters’ in the
region should be identified.”
Finally, the agencies have an
expansive view of bodies of water beyond just aquatic systems, writing in a
not-so-innocuous footnote, “The terms do not refer solely to the water
contained in these aquatic systems, but to the system as a whole including
associated chemical, physical, and biological features.”
To which, Pacific
Legal Foundation’s M. Reed Hopper and Todd Gaziano complain in the Wall Street
Journal, “What isn’t a chemical, physical
or biological feature of an aquatic system as a whole? Does that cover an
entire ecoregion? Probably, since agency bureaucrats generally have discretion
to interpret and apply their own definitions. Rather than clarify federal
jurisdiction, as promised, the proposed rule introduces vastly greater
uncertainty.”
Indeed, the entire atmosphere is
about 4 percent water. In some organisms, their bodies can be composed of as
much as 90 percent water. In humans, it’s about 60 percent. Can those be
regulated too as a “biological feature” of an aquatic system?
Hopper and Gaziano note, “By any
fair reading, the proposed rule would federalize virtually all water in the
nation, and much of the land, in direct contravention of Supreme Court
precedent…”
Here Hopper and Gaziano are
referencing SWANCC v. Army Corps of Engineers (2001) and Rapanos v.
United States (2006), which respectively found that the Army Corps could
not regulate “isolated water bodies” that were not connected to traditional
navigable waters and that agencies, per Hopper and Gaziano, “could not regulate
wetlands merely because they have a hydrological connection to downstream
navigable waters.”
Undeterred, EPA and the Army Corps
have moved forward with their rulemaking, and the implications for property
owners everywhere, including farmers and ranchers, are simply breathtaking.
The issues the regulation raises for
Congress are fairly profound. For example, last year the House of
Representatives passed HR
5078 which bars implementation of the
rule or anything “substantially similar.”
The trouble is, whether subsequent
rulemakings would be “substantially similar” would undoubtedly be left up to
judicial interpretation, meaning more rounds of regulatory whack-a-mole on the
Clean Water Act would be in order for generations to come.
This underscores the problem itself,
which is Congress’ reliance on the goodwill and common sense of regulators in
drafting these rules, such as under the Clean Water Act, an approach which has
proven to be colossal failure, resulting in nearly two decades of litigation
over just how far the law goes. It is the administrative state defined.
This year, it is high time for
Congress to cut the root of the problem, which is the broad nature of the Clean
Water Act itself. Perhaps the reason the agencies keep coming forward with
rules beyond the scope of what legislators ever intended is because Congress
authorized them to write them.
If members want to address the issue
head on, the solution is severely to restrict that authority to draft expansive
regulations under the Clean Water Act, and the Clean Air Act for that matter.
No less than the property interests of every single American, including farmers
and ranchers, are at stake.
Robert Romano is the senior editor of
Americans for Limited Government.
http://netrightdaily.com/2015/02/clean-water-act-regulatory-whack-mole-hurts-farmers/
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