EPA’s Water Grab Thwarted
By Kathryn VanDeveer, Staff Writer
The Environmental Protection Agency (EPA) – loved by environmentalists and cursed by industry & business. This gross oversimplification is nothing compared to the reach that the federal regulatory agency has recently attempted to extend over the “waters of the United States.” The Federal Water Pollution Control Act (FWPCA) – a.k.a. the Clean Water Act (CWA) – grants the EPA the authority to regulate the “waters of the United States.” However, exactly what constitutes “waters” has been difficult to pin down since the CWA’s establishment.
The EPA and the U.S. Army Corps of Engineers (Corps) recently published a final rule entitled, Clean Water Rule: Definition of “Waters of the United States” (CWR). The rule went into effect on August 28th, 2015.[1] Its purpose was to define the CWA’s scope of protected waters.[2] It sought to clarify the definition of “waters of the United States” and make more predictable the EPA’s application of the regulation.[3]
The CWR attempts to clarify the definition of “waters of the United States” with an 8 prong 5 subpart definition. However, the CWR is riddled with undefinable phrases such as: water determined to have a significant nexus,[4] similar waters,[5] and adjacent water[6].
Yet President Obama quickly endorsed the CWR when it was proposed, urging that the rule would “provide the clarity and certainty business and industry need about which waters are protected by the Clean Water Act.”[7] However, the Clean Water Rule has led to extreme controversy as opponents have argued its uncertainty and called it a federal power grab.[8]
Critics argue the CWR allows the EPA and Corps oversight of seemingly all waterways in the country if there is even a possibility that the water could ultimately reach a navigable waterway.[9] Landowners are concerned that their private property rights are being unconstitutionally infringed upon and bureaucrats are overburdening and punishing landowners residing or working within the proximity of waters.[10] Specifically, farmers contend that with the CWR’s unclear terms such as “significant nexus” and “adjacent waters,” the EPA has now made it impossible for farmers to know by any clear standard whether their own land is within federal jurisdiction and if they will be suddenly subject to fines for utilizing their property as they have for decades.[11] Additionally, according to Alabama’s Attorney General Luther Strange, the CWR is so “overly broad that even the U.S. Army Corps of Engineers has expressed serious concerns about [the CWR’s] ability to be enforced.”[12]
As a result, 18 states – Ohio, Michigan, Tennessee, Oklahoma, Texas, Louisiana, Mississippi, Georgia, West Virginia, Alabama, Florida, Indiana, Kansas, Kentucky, North Carolina, South Carolina, Utah, and Wisconsin – joined together to request that the Sixth Circuit Court of Appeals grant a nationwide stay on the CWR. Such a stay would temporarily block the new rule from enforcement. (Meanwhile, 13 states had already granted a stay.)
The Sixth Circuit correctly recognized that there is a need for a new rule to clarify the CWA’s problematic application. However, Judge McKeague noted that the “definitions of ‘navigable waters’ and ‘waters of the United States’ have been clouded by uncertainty.”[13] The Court reasoned that what was important is the national burden that the CWR would impose on governmental bodies, private and public parties, and the general public in effectively “redrawing of jurisdictional lines over certain of the nation’s waters.”[14] Therefore, the pre-rule uniformity, although imperfect, would be better for the national overall. As a result, the Court ordered the nationwide stay on October 9th, 2015.[15]
[1] Eric Mann, Lagniappe Weekly, Court halts implementing of ‘Waters of the US’ rule, http://lagniappemobile.com/court-halts-implementation-waters-us-rule/ (October 9, 2015).
[2] Clean Water Rule: Definition of “Waters of the United States”, 80 FR 37054-01.
[3] Id.
[4] 40 C.F.R. § 122.2(1)(viii).
[5] 40 C.F.R. § 122.2(1)(vi).
[6] 40 C.F.R. § 122.2(1)(vii).
[7] Jenny Hopkinson, Politico, Obama’s Water War, http://www.politico.com/story/2015/05/epa-waterways-wetlands-rule-118319 (May 27, 2015, 10:41 a.m. EDT).
[8] Steve Delchin, Sixth Circuit Appellate Blog, Sixth Circuit Issues Nationwide Stay Blocking Federal Regulation Over Water and Wetlands, http://www.sixthcircuitappellateblog.com/ (October 9, 2015).
[9] Nolan Finley, The Detroit News, Court checks EPA water grab, http://www.detroitnews.com/story/opinion/columnists/nolan-finley/2015/10/13/finley-epa-water-grab/73898154/ (October 13, 2015).
[10] Eric Mann, Lagniappe Weekly, Court halts implementing of ‘Waters of the US’ rule, http://lagniappemobile.com/court-halts-implementation-waters-us-rule/ (October 9, 2015).
[11] Bob Stallman, The Voice of Agriculture, EPA’s New Water Rule Is Even Worse than Farmers Feared, http://www.fb.org/newsroom/agendas/78/ (July 2015).
[12] Eric Mann, Lagniappe Weekly, Court halts implementing of ‘Waters of the US’ rule, http://lagniappemobile.com/court-halts-implementation-waters-us-rule/ (October 9, 2015).
[13] In re E.P.A., No. 15-3799, 2015 WL 5893814, at *3 (6th Cir. Oct. 9, 2015).
[14] Id.
[15] In re E.P.A., at *4.
