Commentary: Will EPA regulate all water?

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The U.S. Environmental Protection Agency is pushing to control the waters of the United States. And at least one political leader is pushing back.

"To let EPA begin to regulate all waters of the United States would have devastating impacts on rural towns, farmers and local governments," says Congressman Mike Simpson, R-Idaho.  His proposed legislation, called the Defense of Environment and Property Act of 2013, is an effort to stop EPA from regulating virtually all water bodies in the U.S.

He will likely fail.

On January 27, I wrote about a term you will see frequently, called "Connectivity". As I predicted, this 331-page report serves as justification for EPA to regulate virtually all waters in the U.S. "consistent with science" it claims.

EPA claims it is merely clarifying three U.S. Supreme Court wetland cases.  In one lower court case EPA claimed jurisdiction over standing water in an Illinois corn field by claiming migratory birds using the water gave it jurisdiction over the land.( I tried this case, Hoffman Homes, Inc v. EPA  and EPA lost.)

EPA did not give up. It pursued its migratory bird jurisdiction argument all the way to the Supreme Court in SWANCC v U.S, Corps of Engineers. EPA and the Corps were told they did not have jurisdiction if migratory birds flew over or used water in isolated puddles on fields.  In June 2006, the U.S. Supreme Court again addressed the scope of Clean Water Act (CWA) protection for wetlands adjacent to tributaries of traditional navigable waters in Rapanos v United States.

There were separate opinions issued by 5 justices in the majority. It is interesting to note, given EPA's power grab, that it virtually ignores the plurality opinion (four Justices) by Justice Scalia. He wrote that "Waters of the United States extend beyond traditional navigable waters to include relatively permanent, standing or flowing bodies of water."  He  said the phrase "relatively permanent includes seasonal rivers, but not streams whose flow is coming and going at intervals…broken, fitful…or existing only, for no longer than, a day."

Justice Scalia and three of his colleagues concluded that only wetlands with a continuous surface connection to other waters of the United States are protected by the CWA.

Justice Kennedy, in a separate concurring opinion, wrote that waters of the United States includes "waters…that possess a significant nexus to waters that are or were navigable in fact or that could reasonably be so made."  He said wetlands have a significant nexus where they "…either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as navigable."

Tax dollars at work
EPA loves this description, which allows it to spend millions of your tax dollars on studies establishing a "significant nexus." Most of you cannot afford to do these studies to defend yourself.

Justice Alito has said that "The reach of the Clean Water Act is notoriously unclear. Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the [CWA]."

EPA, relying on its Connectivity report, claims that tributaries and their adjacent waters play an important role in protecting the chemical, physical, and biological integrity of traditional navigable waters because these tributaries and adjacent waters have hydrological and ecological connections to and interact with those waters. (You can see where this is going).

The EPA summary on "significant nexus" relies on Justice Kennedy's expansive, inexact and unmanageable, definition of water and property that can be regulated by EPA.

EPA's new proposed draft  definition to regulate water states "On a case-specific basis, other waters, including wetlands, provided that those waters alone, or in combination with other similarly situated waters, including wetlands, located in the same region, have a significant nexus to a water identified in paragraphs (1) through (3) of this section."

EPA will determine the nexus of water on your property to a water of the state or the United States, "consistent with the science."

EPA's paragraph 1 says "All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide."

For agriculture, EPA does exclude specified waters from its jurisdiction such as prior converted cropland, irrigated upland areas, artificial lakes or ponds, diking dry land for stock watering, depressions created by construction activity, groundwater channeled through subsurface drainage systems and non-wetland swales and puddles.

What waters EPA will potentially regulate? The courts will eventually tell us.

Gary H. Baise is a principal at OFW Law (Olsson Frank Weeda Terman Matz P.C.). This article first appeared in Farm Futures magazine. The opinions presented here are expressly those of the author. For more information, go to www.OFWlaw.com.


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