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EPA Moves to Expand Jurisdiction under Clean Water Act 404

September 19, 2013 J,

By, James Valvo

This week EPA kicked off the next round in the decades-old debate over the agency’s jurisdiction to regulate land and water usage under section 404 of the Clean Water Act.  Section 404 authorizes EPA and the Army Corp of Engineers to regulate who and when dredge and fill material may be disposed of in “navigable waters.”  The statute defines this term to mean “waters of the United States, including the territorial seas.”  Instead of accepting the clear language of the statute as limiting the regulatory reach to waters that are navigable in-fact (that is, capable of being navigated by a vessel) EPA has relentlessly attempted to expand its jurisdiction.

This agency aggression has led to numerous absurd results.  Perhaps most notoriously, in SWANCC v. Army Corps of Engineers the Supreme Court blocked EPA and the Corps from asserting that it could stop a Michigan landowner from filling in an old gravel pit to build a mall because water had begun to collect in the bottom of the old pit.  The agency’s claim to jurisdiction was that migratory birds sometimes landed in the gravel pit and thus the pond itself impacted the interstate commerce created by bird watchers.  The high court didn’t buy it and vacated the Migratory Bird Rule.  More recently, in Sackett v. EPA the Supreme Court ruled 9-0 that EPA could not fine the Sacketts $75,000 per day under section 404 and then try to evade judicial review.  More importantly, Justice Alito reminded that only “clarification of the reach of the Clean Water Act can rectify the underlying problem.”  In Mingo Logan, EPA used section 404 to retroactively pull a permit that it has previously issued for a mine to discard dredge and fill material.  The Mingo Logan case put permit holders on notice: Your permits are never permanent and EPA can come back and pull them whenever it wants.  That permitting abuse is currently being appealed.

This week, EPA pulled a guidance document that had been languishing at the White House’s Office of Management and Budget for more than a year and instead filed a proposed rule for interagency review.  This action signals that EPA will make another attempt at describing what it believes its jurisdiction is over wetlands, swamps, bogs, creeks, dry beds, arroyos, manmade ditches and other avenues that may or may not have a relationship with “the waters of the United States.”

EPA has long asserted that the interconnectivity between all water in an ecosystem means that in order for EPA to tend to the water quality in water that is navigable in-fact it must therefore regulate all water no matter how far upstream.  This assertion has failed numerous times in various courts.  However, this week EPA also finalized a meta-analysis of 1,000 studies outlining how pollutants in wetlands affect downstream water quality.  This study serves one clear purpose: to sway Justice Kennedy to give the agency a pass on expanding its jurisdiction.

Justice Kennedy was the swing vote in the 4-4-1 muddled ruling in Rapanos v. Army Corps of Engineers.  In Rapanos, Justice Kennedy reminded that his understanding of “navigable waters” extends so far as wetlands with “a significant nexus between the wetlands in question and navigable waters in the traditional sense.”  EPA’s study aims to demonstrate that such a significant nexus exists in nearly every case and thus EPA and the Corps should be able to require permits anytime a landowner wants to dispose of dredge and fill in or near nearly any channel that has the potential to hold water.  This interpretation has only one logical conclusion: EPA believes that it has jurisdiction over all water in the United States and any piece of land that has the potential to create runoff—basically, all of it.  The burden on landowners of such an interpretation is clearly beyond anything Congress could have intended when it wrote the Clean Water Act.

This powerful video from the Pacific Legal Foundation tells the story of one such landowner who was stopped from even cleaning up his own land.  This is what happens when an agency is allowed to determine its own jurisdiction; they will overreach.

EPA’s action withdrawing the stalled guidance and circulating a proposed rule for interagency review could also signal the agency’s renewed confidence that the Supreme Court will give it more deference over jurisdictional disputes than it has in the past.  This agency confidence likely stems from the recently decided Arlington v. FCC case.  In Arlington, the Court ruled that agencies get coveted Chevron deference when deciding the scope of their own jurisdiction.  This level of deference from courts to agencies is rarely violated by agencies.  So long as the agency makes a reasonable interpretation of the statute, the court is likely to defer.  This deference has led to an ever-expanding administrative state.  In his dissent, Chief Justice Roberts reminded that “Agencies are creatures of Congress; an agency literally has no power to act … unless and until Congress confers power upon it.”

That basic tenant of American law is under threat and EPA is pushing hard to expand its authority under Clean Water Act section 404.  The next chapter has begun…

Mr. Valvo is the director of policy at Americans for Prosperity.

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