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September 12 2016

Legal Brief: The Clean Water Act

Erin Hawley

 

In a new rule promulgated by the Environmental Protection Agency and Corps of Engineers, the Obama Administration has asserted federal jurisdiction over hundreds of millions of acres of land in the United States. Experts suggest, for example, that 99% of land in Pennsylvania may be subject to the EPA’s jurisdiction. My home state of Missouri is in similar shape: more than 99% of its land may be subject to federal jurisdiction. 

The claimed authority for this land grab: The Clean Water Act of 1972. But the text of that statute suggests that federal jurisdiction is limited to waters that are navigable in fact or easily made navigable. Nevertheless, under the new Waters of the U.S. Rule (WOTUS Rule), the EPA and Corps asserts federal jurisdiction over dry streambeds, man-made lakes, better to be man-made lakes and wetlands. In short, nearly any wet area, even if it is wet only seasonally, or during a flood, may be subject to federal jurisdiction. In the agencies’ view, these geographic features are subject to federal regulation because they fall within the statutory term “Water of the United States.” 

The broad definition of “the Waters of the United States” given by the agencies will have a significant impact on homeowners, farmers, and business people as nearly any activity on jurisdictional land is prohibited without a permit. The resulting permitting costs (typically $270,000 for an individual permit) and delays will increase the price of doing business for industries nationwide. 

The agencies’ rule, moreover, intrudes on the states’ traditional authority to regulate the land and water within their boundaries. This is directly contrary to the text of the Clean Water Act (CWA), which identifies the states as the primary protectorate of their land and water resources. 

However, there is good news: a number of states have filed suit in federal court alleging that the WOTUS Rule violates the Clean Water Act. Courts across the country have agreed. Finding that the states are likely to win their challenge, the Sixth Circuit has imposed a nationwide stay of the WOTUS Rule pending resolution of the lawsuits. 

The latest Rule from the agencies should be the last straw. No one seriously argues that the Congress of 1972 intended to subject mundane land use questions to federal regulatory authority, but rather meant for that power to reside with the states. That should be the end of the matter. But federal courts and federal agencies have long taken a broad view of the reach of the CWA, at the expense of the states and private industry. It is time for Congress to step in and to clarify that the CWA covers only interstate waters that are navigable or capable of being made so. 

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