“Waters of the United States” — the ultimate power grab

The Clean Water Act prohibits certain discharges to “navigable waters” without a federal permit.  The Act defines “navigable waters” as “waters of the United States” which the Corps and EPA originally took to mean traditional navigable waters that could be used in interstate commerce.  This is important because the Clean Water Act is based on the commerce power.  By definition, regulation of waters under the Act must be necessary to and in furtherance of interstate commerce.  But it didn’t take long before the agencies started pushing the envelope on federal jurisdiction claiming regulatory authority over wetlands and other nonnavigable waters that had nothing to do with commerce, let alone interstate commerce.

Things came to a head when the Corps asserted jurisdiction over small, remote pools that were wholly isolated from traditional navigable waters.   The case went to the U.S. Supreme Court in SWANCC v. Corps (2001).  The court chastised the Corps for setting up a moving target for its jurisdiction and forbade the Corps from regulating “isolated water bodies.”  In support of this decision the court observed the regulation of nonnavigable, intrastate waters would read the term “navigable” right out of the Act and raise constitutional questions about the scope of the commerce power and State’s Rights.

Unfortunately, the case did not change agency practice much.  The EPA and Corps continued to regulate nonavigable, intrastate waters and even expanded their jurisdiction claiming they could now regulate any water with a hydrological connection to traditional navigable waters.  This lead to federal regulation of typically dry land features such as arroyos and washes in the desert as well as ditches, drains and culverts hundreds of miles from traditional navigable waters.

In 2006, in a Supreme Court case called Rapanos v. United States, PLF challenged the agencies’ jurisdiction as overbroad.  A majority of the court agreed with PLF that the government had  overreached and the Corps and EPA could not regulate a water merely because it has a hydrological connection to downstream navigable waters.

However, in April of this year, the Corps and EPA proposed a highly controversial rule redefining the term “waters of the United States” in a way that contradicts the SWANCC and Rapanos decisions.  Under the new rule, these agencies seek to regulate “isolated water bodies” and any other water body with a hydrological connection to traditional navigable waters, the very waters the Supreme Court said the agencies could not regulate.

These agencies have redefined the term “waters of the United States” so broadly that it covers virtually any wet spot in the country, including ditches, drains, intermittent streams, ponds, impoundments, prairie potholes, and large buffer areas along every watercourse.  Only minor water features are excluded from federal control, such as artificial pools or ponds, but only if they are in dry, upland areas.

As we document in our comments opposing the rule, the Corps and EPA’s self-serving redefinition of “waters of the United States” is undoubtedly the largest expansion of power ever proposed by a federal agency. It would far exceed federal jurisdiction, usurp the power of the States to manage local land and water resources, nullify constitutional limits on federal authority, and conflict with Supreme Court precedent.  You can read our detailed analysis of the rule here.

This proposed rule is patently unreasonable and should be amended or withdrawn.  If it is not, you can count on PLF being in the courts again to hold overzealous bureaucrats accountable to the rule-of-law.