On April 27, the Environmental Protection Agency (EPA) released a Clean Water Act jurisdictional guidance document that would drastically expand the EPA’s ability to regulate private land and water. Just as the EPA used regulation to get around Congress’s rejection of cap-and-trade legislation to tax carbon dioxide, the agency is again ignoring Congress after policymakers failed to move legislation forward.
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 (CWA) with “waters of the U.S.,” which would significantly expand what the EPA could regulate. Congress rejected the Oberstar–Feingold approach, but now EPA is unilaterally moving forward with its own rules that would stunt economic activity and job creation.
EPA Administrator Lisa Jackson said it would not be a “massive increase as far as we can tell” in terms of new waters under federal jurisdiction but did say, “I do think there will be some expansion [of regulatory jurisdiction] to waters that currently people might view as isolated.” In response to the guidance, Senator John Barrasso (R–WY) and 19 other Senators sent a letter to Jackson expressing their concern about the EPA’s guidance. The letter says:
It is particularly troubling that the guidance allows the U.S. Army Corps of Engineers and EPA to regulate waters now considered entirely under state jurisdiction. This unprecedented exercise of power will allow EPA to trump states’ rights, and vitiate the authority of state and local governments to make local land and water use decisions. This is particularly troubling when we have seen no evidence that the states are misusing or otherwise failing to meet their responsibilities.
Enormous resources will be needed to expand the CWA federal regulatory program. Not only will there be a host of landowners and project proponents who will now be subject to the CWA’s mandates and costs of obtaining permits, but an increase in the number of permits needed will lead to longer permitting delays. Increased delays in securing permits will impede a host of economic activities in our states. Commercial and residential real estate development, agriculture, electric transmission, transportation, energy development and mining will all be effected [sic] and thousands of jobs will be lost. Moreover, the agencies will need additional resources to complete jurisdictional determinations and administer the overall program. As the geographic scope of authority grows, so do the needs for program resources.
The letter asks a number of critical questions, including the draft guidance’s broad interpretation of a Supreme Court decision in which Supreme Court Justice Anthony Kennedy said “regulators must determine where there’s a ‘significant nexus’ between a wetland and navigable waters.” This means the EPA will waste resources and taxpayer dollars trying to determine what is in its jurisdiction to regulate and hold up farming, ranching, homebuilding, and small business activity. 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.”
The guidance is now in a 60-day comment period, and Jackson made no mention of when an actual rule would be put forward, but the proposed guidance suggests any rule would be extremely destructive to economic development. The ambiguity about which waters should be regulated does not mean a federal one-size-fits-all approach is the best fix. In fact, the opposite is true. A decentralized approach that relies on state and local government involvement is the best approach to promote environmental conservation without compromising economic development.