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Should EPA expand its Clean Water Act jurisdiction?

With its latest plan to expand regulation of America’s waterways, the Environmental Protection Agency is poised to extend its regulatory reach deep into the American heartland.

If this proposed rule is finalized early next year, dry stream beds, isolated farm ponds, lowland ditches, and any other water under a case-specific determination by the EPA could become federally-protected “waters,” with status equal to “navigable waters.” This would give EPA and the Army Corps of Engineers say over how – and even whether – millions of landowners can use their property.

What are the Waters of the United States?

At issue is what Congress intended be subject to regulation when it passed the Clean Water Act in 1972. The law lets states protect their own waters, and reserves for the federal government the authority to regulate waters used in interstate or foreign commerce – that is, “navigable waters,” spelled out as “the waters of the United States, including the territorial seas.”

Obviously a major river or lake should fall within the law’s purview. But what about a wetland or pond? Or rain that collects in a drainage ditch?  Are those navigable?

Regulation_feature_10-2014Over the years, the Supreme Court has weighed in on three occasions to give shape and scope to the statute, sometimes with conflicting guidance. On two of those occasions, EPA’s efforts to expand its jurisdiction have been firmly rebuffed.

So in an effort to unravel the alleged uncertainties regarding jurisdiction, EPA recently proposed rules that it says would “clarify” matters.

Let’s be clear about this so-called clarification: It’s not needed. There has been no regulatory market failure to suggest that jurisdictional changes of the scale reflected in the proposed rule are needed or warranted.

The proposed rule amounts to EPA picking and choosing the language it likes from prior Supreme Court decisions – and skipping the language it doesn’t. In this way the agency would dramatically expand its own authority in ways the courts routinely have sought to discourage.

Bad for the economy

Allowing EPA to extend its authority this way will be bad for many sectors of the economy, particularly agriculture and energy.

To explain why, I recommend this excellent series of posts from Gary Baise, an attorney who is working with a number of agricultural groups. Baise details why EPA’s claims that nothing will change and that its jurisdiction wouldn’t expand are simply not credible.

In recent months, EPA administrator Gina McCarthy has addressed criticism of her agency’s proposal, calling this criticism “ludicrous” and “crazy.”

Such defensiveness should prompt people to look a little more closely at the proposal.

Significant economic costs

The public and policymakers should also take time to listen to what the Small Business Administration’s Office of Advocacy has to say. It recently offered comments strenuously opposing the new rules, stating flatly that the rule will impose significant and direct economic costs. (EPA suggests the costs will be minimal.)

Last month a bipartisan majority in the House of Representatives voted to block EPA from implementing this rule.

EPA should take a timeout to have a more informed stakeholder debate on the need for and scope of this proposal.  America’s waterways warrant protection, but so do America’s property owners and businesses.


  • Worth a deeper look...