The EPA wants to redefine ‘the waters of the United States’ to mean virtually any wet spot in the country.
Earlier this year the Environmental Protection Agency and Army Corps of Engineers proposed a rule redefining the “waters of the United States” that are subject to regulation under the Clean Water Act. The two agencies recently finished collecting public comments on their draft rule and are deciding how to proceed. Their best course is to abandon the rule or anything like it. Here’s why:
EPA Administrator Gina McCarthy wrote in Huffington Post in March that the draft rule would clarify the meaning of the relevant terms in the law without expanding federal jurisdiction and promised it would “save us time, keep money in our pockets, cut red tape, [and] give certainty to business.” None of this is true.
The Clean Water Act of 1972 prohibits discharges into “navigable waters” without a federal permit, defining “navigable waters” as “waters of the United States.” Initially the Army Corps and EPA interpreted waters of the U.S. to mean those that could be used as channels of navigation for interstate commerce. This reading is logical and necessary because the Clean Water Act is authorized by Congress’s power to regulate interstate commerce—which as Chief Justice John Marshall wrote in Gibbons v. Ogden (1824), includes the transport of passengers and goods across state lines but not the commercial or noncommercial activity within a single state.
Within a few years, however, the two agencies claimed regulatory authority over wetlands and other nonnavigable waters that had no significant connection to interstate commerce. The Supreme Court has twice rejected these claims.
In SWANCC v. Army Corps of Engineers (2001), the court forbade the Army Corps from regulating “isolated water bodies” that were not connected to traditional navigable waters. Nevertheless, the Army Corps and EPA have largely ignored or circumvented the ruling with new interpretations. They claimed that they could regulate anything with a “hydrological connection” to traditional navigable waters—including normally dry-land features such as arroyos in the desert as well as ditches and culverts hundreds of miles from traditional navigable waters.