You’ve seen the articles in recent weeks breathlessly declaring our Nation’s waters are at imminent risk of uncontrolled pollution because the Supreme Court did its job and restricted federal jurisdiction under the Clean Water Act in its 2006 Rapanos decision.
This week Representatives Henry Waxman, D-Calif, and James Oberstar, D-Minn, made overheated claims that EPA enforcement of the Act is "faltering" because the agency dropped over 300 hundred cases after the Rapanos decision due to jurisdictional questions.
It’s inconceivable to these lawmakers that the EPA had far exceeded its authority to regulate every pond, puddle and ditch in the Nation prior to the Rapanos decision and the High Court was right to set some limits on federal authority as required by the Constitution, the Clean Water Act itself, state sovereignty, court precedent and the "rule of law."
Given the EPA’s prior claim that it could regulate virtually all "non-navigable" water bodies in the country, whereas the Clean Water Act only authorizes federal regulation of "navigable" waters, it is surprising the agency did not drop more cases for lack of jurisdiction when the Supreme Court declared the agency had gone too far in the Rapanos case.
Representatives Waxman and Oberstar are trying to drum up support for the so-called Clean Water Restoration Act, HR2421, which is pending in Congress. That bill is being sold on the patently false claim that Congress always intended for federal officials to control the use of every wet spot in the Country (and much of the dry land too). The truth is that in the Clean Water Act Congress expressly recognized "the primary responsibilities and rights of the States" to eliminate pollution and determine the "development and use ... of land and water resources" locally.
HR2421 goes far beyond the original intent of Congress and is designed to expand federal authority to an extreme never seen in our history. The bill literally authorizes federal bureaucrats to control "all water" in the United States, whether private or public, state or federal.
You gotta pond or ditch in your backyard? Don’t be surprised if the feds come knock’n.
The culprit here is not the Supreme Court but heavy-handed federal regulation, which would only increase under HR2421. Even after the Rapanos decision, federal officials are still expanding their regulatory reach. They now claim the frozen permafrost in Alaska (covering millions of acres) is a jurisdictional wetland subject to federal control. Rather than "faltering," the enforcing agencies continue to impose severe civil and criminal penalties on landowners by declaring the placement of clean dirt on mostly dry land the equivalent of a discharge of a pollutant into "navigable waters."
If the Rapanos decision has finally brought the EPA kicking and screaming to a realization that it routinely exceeded its authority in the past, then so much the better. Hopefully, we can look forward to more enforcement cases being dropped because of questionable jurisdictional determinations. Policing local waters and punishing local polluters is the job of the States, not federal bureaucrats acting as a law unto themselves.
Reed Hopper is a principal attorney with Pacific Legal Foundation. He successfully represented John Rapanos in the U.S. Supreme Court.
An internal EPA memorandum from the Office for Enforcement and Compliance Assurance reveals that Rapanos, in combination with the EPA’s June 2007 Guidance, has, in the memo’s wording, "negatively affected approximately 500 enforcement cases," by making the jurisdictional assessment more burdensome, resource-intensive, and time-consuming. The memo suggests three changes to the Guidance to improve post-Rapanos enforcement:
1. Do away with the concept "relevant reach" to delimit the segment of a nonnavigable tributary to which EPA must look for a significant nexus, and instead look to the entire tributary.
2. Rely upon Justice Kennedy’s "aggregation" principle to assert wetlands jurisdiction on a watershed-wide basis.
3. Adopt an "ordinary high water mark" standard to determine categorically whether nonnavigable tributaries bear a significant nexus with navigable waters.
Of course, each of these recommendations merely serves to expand federal control to all the Nation’s waters; and EPA seems to operate under the assumption that regulatory streamlining achieved by increasing agency power is just as much a benefit to the public as regulatory streamlining achieved by reducing agency power. At bottom, the memo reveals EPA’s desire to do an endrun around the significant nexus requirement by creating classes of wetlands and tributaries that are presumptively jurisdictional.