This commentary originally appeared in The Washington Times on October 25, 2015.
Property owners can rest easier these days knowing that filling a prairie pothole with sand miles away from any navigable water will probably not violate federal law under the Clean Water Act at least not for now.
Recently, the Sixth Circuit Court of Appeals issued a preliminary stay delaying the implementation of new regulations that dramatically expand the U.S. Environmental Protection Agency’s (EPA) authority to regulate private property under the Clean Water Act. The stay remains in effect while the court determines whether it has jurisdiction to hear multiple states’ challenges to the new regulations.
While the court mulls over the particulars of the challenges before it, Americans have an opportunity to rethink whether administrative agencies like the EPA should determine the boundaries of their own authority in the first place.
Litigation over an EPA power grab has become a frequent occurrence. The EPA’s Clean Water Act authority has come before the U.S. Supreme Court nine times in the past 40 years, with countless other actions taking place in lower courts. Since 1985, the Supreme Court has rejected each attempt by EPA to expand its authority.
Nonetheless, the structure of the Clean Water Act virtually guarantees this will not be the last time a court rules on the EPA’s jurisdiction. Under the Clean Water Act, the EPA has authority to regulate the discharge of dirt or other particulates into the “Waters of the United States” (WOTUS). However, the act does not explicitly define WOTUS leaving the EPA to interpret the statute’s creating its own authority. This creates a strange scenario whereby the EPA may expand its jurisdiction by simply changing the definition of “Waters of the United States.”
Not surprisingly, the EPA has been exceedingly liberal when determining the outer lines of its authority. When the Clean Water Act was passed, the “Waters of the United States” were generally understood to encompass waters that were navigable in fact — i.e. rivers, lakes, and large streams. By 2001, however, the Supreme Court had to intervene to prevent theEPA from applying a revised definition of WOTUS that included isolated puddles of rainwater in gravel pits, miles from any navigable water. TheEPA alleged those rain puddles were “waters of the United States” because birds that nest in navigable waters could stop there.
Five years later, the Supreme Court again rebuffed the EPA’s attempts to expand its authority beyond any commonsense reading of the Clean Water Act. In Rapanos v. United States, EPA argued that marshy ground approximately 20 miles away from any navigable water was “adjacent” to a navigable water and thus under federal jurisdiction. Disagreeing, the Court noted how far the EPA’s definition of WOTUS had traveled from the intent of the CWA. Writing for a plurality of the Court, Justice Scalia opined that, “in applying the definition [of WOTUS] to ephemeral streams, wet meadows, storm sewers and culverts, directional sheet flow during storm events, drain tiles, man-made drainage ditches, and dry arroyos in the middle of the desert, the [government] has stretched the term ‘waters of the United States’ beyond parody. The plain language of the statute simply does not authorize this ‘Land Is Waters’ approach to federal jurisdiction.”
Today, the EPA is at it again. Among other things, the new WOTUS definition will expand EPA jurisdiction to cover not only current water systems, but also all dry land within the 100-year flood plain of those systems. In other words, land that is wet only one day in a hundred years will now be considered a “Water of the United States.” Worse, there is no way to challenge that expansion, unless an injured property owner spends years and hundreds of thousands of dollars challenging EPAjurisdiction in court.
The Founding Fathers did not design our government to work this way. The Constitution charges our legislature with writing the laws and the executive branch with carrying them out. To have executive agencies legislating the bounds of their own authority is akin to asking a fox to guard a hen house. Expecting property owners to act as policemen by constantly suing the agencies who attempt to expand their authority is inefficient and unrealistic. It is high time that Congress did its job, and precisely defined “Waters of the United States” as well as EPA’s authority under the Clean Water Act.
Chance Weldon is an attorney with the Center for the American Future at the Texas Public Policy Foundation.