The Environmental Protection Agency (EPA) is developing the reputation for moving forward with plans Congress cannot accomplish. Last Congress, Representative Jim Oberstar (D-MN) and Senator Russ Feingold (D-WI) tried to expand the powers of the EPA by introducing legislation that would replace the term “navigable waters” in the Clean Water Act with “waters of the U.S.,” which would significantly expand what the EPA could regulate. Reforming the Clean Water Act is necessary, but this is the wrong way to go about it.
Congress rejected the Oberstar-Feingold approach, but now EPA is unilaterally moving forward with its own rules. The Western Business Roundtable obtained a 38-page leaked draft guidance that provides the detail of this expansive and intrusive regulatory policy. The Western Farm Press summarizes the draft, saying,
The guidance will ‘significantly’ expand regulators’ ability to oversee wetlands and other marginal waters compared to earlier guidance prepared by the Bush Administration.
At issue are two Supreme Court rulings that environmentalists say have narrowed the law’s jurisdiction over isolated wetlands, intermittent streams and other marginal waters. In Solid Waste Agency of Northern Cook County (SWANCC) v. Army Corps of Engineers, the court limited the basis for asserting jurisdiction over solely intrastate waters, while in Rapanos v. United States, the court provided two competing tests for determining jurisdiction. Justice Kennedy’s test for determining jurisdiction states that water bodies must have a ‘significant nexus’ to ‘navigable waters’, while Justice Antonin Scalia offered a stricter test that required regulators to show a relatively permanent surface connection with a traditionally navigable water to assert jurisdiction.
The divide on the definition of “navigable waters” may not matter according the EPA’s draft guidance. The draft guidance acknowledges that “the agencies expect that the number of waters found to be subject to CWA jurisdiction will increase significantly compared to practices under the 2003 SWANCC guidance and the 2008 Rapanos guidance.”
Sound familiar? It should. The EPA is also using the Clean Air Act to bypass Congress. Realizing the exorbitant costs and minimal environmental impact of instituting a massive carbon dioxide regulatory regime, Members of Congress stopped cap-and-trade legislation to cut CO2 emissions from becoming law in the last Congress. But the EPA is trudging ahead with its own plans to regulate CO2 under the Clean Air Act.
Blocking the guidance, which the House of Representatives spending bill did by removing funds to issue the guidance, is a welcome step. Proper reform should remove the confusion from the law. Developers and farmers have long complained that the conflicting Supreme Court decisions have made it difficult to obtain federal permits for areas affecting wetlands. The source of confusion is Justice Anthony Kennedy’s decision that “regulators must determine where there’s a “significant nexus” between a wetland and navigable waters. His definition of that nexus is where wetlands “significantly affect the chemical, physical, and biological integrity of other covered waters.” As a result, the EPA wastes resources and thus taxpayer dollars trying to determine what is in its jurisdiction to regulate.
It’s also difficult for businesses to disprove a nexus exists. Jonathan Adler, director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law said, “The problem is, you’ve got to do a hell of a lot of research to show if you have a significant nexus. You’ve got to do this long, expensive project to figure this out before you do anything else. It makes the whole project much longer in time span and also more involved up front.”
Adler also noted that a final rule, even if it were unfavorable, would at least provide certainty for industry: “If the Obama administration is going to assert excessive authority, the industry would rather have that embodied in a clear, final action under a rule because if the industry wanted to challenge the administration, they would have this final act to challenge.”
A final rule should provide clarity but not be unnecessarily invasive to economic development.