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 The Western Business Roundtable obtained a 38-page leaked draft guidance that provides the detail of this expansive and intrusive regulatory policy.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The divide on the definition of “navigable waters” may not matter according the EPA’s draft guidance. The draft guidance acknowledges that “the agencies expect that the number of waters found to be subject to CWA jurisdiction will increase significantly compared to practices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.”