This week has been a busy one for environmental regulators, with three separate major new regulations announced by federal agencies.
On Tuesday, the Environmental Protection Agency and the U.S. Corps of Engineers announced a new proposed rule that would greatly expand federal regulatory jurisdiction over water. While the Clean Water Act grants federal jurisdiction over “navigable waters,” over the years increasingly broad interpretations of the law have expanded federal control to include such things as intermittent or “ephemeral” water channels, drainage ditches, and wetlands 100 yards from a flood plain. In 2006, the Supreme Court’s decision in Rapanos v. United States rolled back some of the excesses of these interpretations, holding that federal jurisdiction applied to “fixed bodies of water, as opposed to ordinarily dry channels through which water occasionally or intermittently flows.” The rule proposed by the EPA and Army Corps would effectively overturn the Rapanos decision, subjecting a wide swatch of new land to federal permitting and regulations.
On Thursday, the U.S. Fish and Wildlife Service announced that it was listing the Lesser Prairie Chicken as “threatened” under the Endangered Species Act. Listing could affect 41 million acres of land across five states, 7.8 million acres of which exist in Texas. In announcing the rule, FWS indicated that it was devising a special rule that will “retain more state responsibility for managing the lesser prairie-chicken than has ever been retained with respect to any other ESA-protected species,” though a great deal of skepticism is warranted.
Finally, on Friday the White House announced that it would be taking steps to regulate methane emissions from hydraulic fracturing sites. The fracking boom has helped lead to an energy turnaround for the United States, and Texas in particular has been at the center of this boom. Texas has increased its oil production by a remarkable 141% since January 2009, and increased production has reduced imports dramatically. The extent to which any new regulations would impede this continued boom is unclear.
Each of these proposed regulations by itself has the potential to impose significant burdens on American industry and the general public. Together they demonstrate that the Obama Administration’s regulatory avalanche is still expanding.