Yesterday, Gina McCarthy, Administrator of the Environmental Protection Agency, published an op-ed stating that new proposed regulations would clarify which waters are regulated under the Clean Water Act without expanding the scope of the Act. But this has to be a jest. No one could be so ignorant of her own regulations.
According to a 2004 GAO audit, federal officials “differ in how they interpret and apply the federal regulations when determining what wetlands and other waters fall within the [Clean Water Act’s] jurisdiction.” Even staff working in the same office disagree on whether a particular water feature is subject to the Clean Water Act. Why is that? It’s by design.
The government has not strived for clarity. To the contrary, the GAO reported that “‘the definitions used to make jurisdictional determinations’ are deliberately left ‘vague.’” This allows federal officials the freedom to assert the broadest possible interpretation of Clean Water Act jurisdiction, thereby fostering an environment of uncertainty that undermines economic growth.
So, do the proposed regulations fix the problem? No, they exacerbate the problem. The proposed regulations leave all the previously vague terms in place, like “adjacent,” “wetland,” and “discharge,” while adding a handful of equally malleable terms such as “neighboring,” “riparian area,” “floodplain,” “tributary,” and “significant nexus.” The proposed regulations also provide that federal officials can decide on a case-by-case basis whether any “other waters” should be regulated. This necessarily leads to unpredictable and subjective enforcement of the law that is designed to avoid any facial challenge to the government’s regulatory authority. Rather than clarify federal jurisdiction, as the Administrator promised, the proposed regulations introduce greater uncertainty into the regulatory scheme, for both federal officials and the regulated public.
As for the Administrator’s claim that the proposed regulations do not “add or expand” the scope of the Act, nothing could be further from the truth. The EPA is institutionally incapable of restraining itself, as evidenced by the numerous lawsuits challenging the agency’s overly broad interpretation of its power under the Clean Water Act, the Clean Air Act, and other federal laws. The EPA has a consistent history of exceeding its authority, especially under the Clean Water Act. In 2001, in the SWANCC case, and again in 2006, in the Rapanos case, the Supreme Court chastised the government for overreaching. And, as recently as 2011, the EPA proposed controversial “interpretive guidelines” that far exceeded applicable regulatory, statutory, and even constitutional limits. You can read our detailed critique of this power grab here. Remember, this is the same agency that interprets the term “navigable waters” to encompass virtually all “nonnavigable waters.” It beggars belief that the EPA would change its course now. The proposed regulations simply continue this trend.
The proposed regulations do not simply reassert federal authority over historically regulated waters. That is a myth. Instead, they break new ground, expanding the scope of the Clean Water Act to unprecedented lengths. Among other things the proposed regulations grossly expand the scope of federal jurisdiction under the Act by broadening the definition of navigable-in-fact waters, tributaries, adjacent wetlands, adjacent waters, significant nexus, surface connection, etc., and by narrowing the farm exemption and adding all interstate waters and even a catch-all for “other waters.”
The “significant nexus” standard is laughable. Under this standard, similarly situated waters in the region are aggregated to determine their effects on downstream navigable-in-fact waters. Obviously, the larger the region the more likely one is to find a significant effect. Therefore, to ensure such an effect is found, the proposed regulations aggregate waters over an entire “ecoregion,” covering thousands of square miles, such as the entire California Central Valley and the Central Great Plains. There are over 100 of these ecoregions. And if that were not enough, the regulations suggest that in the unlikely event any waters escape federal jurisdiction under this standard they may still be regulated as adjacent waters or as point sources. And, worst of all, the regulations authorize government bureaucrats to determine on a case-by-case basis whether any “other waters” should be regulated. In the end, therefore, the only waters that are clearly not covered are the few that are exempted or expressly excluded from the Act, including artificial reflective pools, ornamental waters, ground water, and gullies, rills and non-wetland swales.
Under these proposed regulations, prudent lawyers would have to advise their clients that unless the waters or ditches on their land are exempt or expressly excluded, they may be subject to federal regulation. This is hardly the “increased clarity [that] will save us time, keep money in our pockets, cut red tape, [and] give certainty to business, “ that the Administrator promised.