Unless a federal judge issues a preliminary injunction, the definition of the “Waters of the U.S.” will change on August 28—giving the Environmental Protection Agency (EPA) the authority to regulate the water in your backyard (even the water that might be in your backyard due to a heavy rain). Even, according to West Virginia Attorney General Patrick Morrisey, “any area where agencies believe water may flow once every 100 years.”
Thirty-one states, in four districts, have filed motions with the federal courts to block the EPA and the U.S. Army Corps of Engineers (ACOE) from beginning to enforce the new “Waters of the U.S.” (WOTUS) rule—which represents a new interpretation of the Clean Water Act (CWA). The Federal Register calls the new rule “definitional” and states: “The rule will ensure protection for the nation’s public health and aquatic resources, and increase CWA program predictability and consistency by clarifying the scope of ‘waters of the United States’ protected under the Act.”
WOTUS was published in the Federal Register on June 29 and will become effective on August 28.
The interpretation is important. The CWA used to apply to “navigable waters” to now, as Texas Attorney General Ken Paxton recently said, “include almost any piece of land that gets wet and puddles.”
Morrisey calls the rule “regulatory lunacy.” He’s hosted town-hall meetings where he’s heard from citizens concerned that “this rule would infringe on their property rights and force them to pay thousands of dollars to do basic work around their homes, farms and workplaces.” Morrisey adds: “This rule expands a scheme whereby property owners have to ask the EPA for permission to do yardwork.” He claims: “Failure to comply with the new regulations could result in fines of up to $37,500 a day.”
While the word “navigable” hasn’t been removed from CWA—as that would require an act of Congress—the EPA has expanded that definition to include any water that has a “significant nexus” with navigable waters. This is where water in your back yard could be impacted. Regarding the final rule, Paxton explains: it “is so broad and open to interpretation that everything from ditches and dry creek beds, to gullies, to isolated ponds formed after a big rain could be considered a ‘water of the United States.’”
The CWA’s single word, “navigable,” has, for decades, been contentious with those who want to expand government control and limit industrial activity such as oil and gas development, mining, ranching, and farming. Former Representative Jim Oberstar (D-MN) fought hard to have the word navigable removed from the CWA and to expand its control to any waters. Despite repeated bites at the apple, prior Congresses refused to pass his legislation.
EPA, once again, uses rulemaking to do what its proponents couldn’t do through legislation—a hallmark of the Obama administration.
A July 28, 2015 letter signed by officials from 31 states, sent to EPA and ACOE by North Dakota Assistant Attorney General Margaret Olson, requesting a minimum nine month extension of the WOTUS effective date, states: “the new regulation will also have a significant impact on agricultural, homebuilding, oil and gas and mining operations as they try to navigate between established state regulatory programs and the EPA’s and ACOE’s new burdensome and conflicting federal requirements. This uncertainty especially threatens those states that rely on revenues from industrial development to fund a wide variety of state programs for the benefit of their respective citizens.”
On August 11, thirteen states—including oil and gas “heavyweights,” as Natural Gas Intelligence (NGI) calls them, Alaska, Colorado, North Dakota, and New Mexico—became the latest to ask a federal judge to block the controversial rule. The states have asked for a hearing on the motion during the week of August 24. NGI states: “The oil and gas industry is opposed to the regulations because they believe it could stifle development.” A statement from the Independent Petroleum Association of America supports this assertion: “The 297-page rulemaking would require a federal permit for any activity that results in a discharge into any body of water covered by the new definition of ‘waters of the United States,’ including small streams and wetlands.”
The Texas Railroad Commission, which overseas oil and gas activity in the state, joined the multi-agency multi-state lawsuit because “the rule redefines navigable waters as used in the CWA, allowing the EPA and ACOE to regulate private land anywhere in the United States where water can conceivably flow—even dry creek beds and manmade ditches. The Texas economy is a proud beneficiary of shale drilling, and some of the water used in this process would move under the jurisdiction of the EPA with the implementation of this rule change.”
Luke Popovich, spokesman for the National Mining Association told me: “This rule embodies all that is wrong with EPA’s overall regulatory approach: its costs will far outweigh any benefits, it violates both the spirit and intent of Congress in the Clean Water Act, and it has been sold as a benign attempt to add ‘clarity’ and ‘certainty’ to the marketplace when in fact it only clarifies and makes certain the threat EPA poses to a wide swath of the economy—from mining and farming to home building and construction.”
Jason Bostic, vice president of the West Virginia Coal Association, adds: “It’s no longer about water or discharges. It’s about regulating the landscape.”
The lawsuit filed in the U.S. District Court for the Southern District of Georgia filed on June 28, on behalf of 9 Southeastern states (now 11, including Indiana and North Carolina), received an expedited briefing and oral arguments were heard on August 12. Morrisey’s office told me they are hopeful for a decision by August 28.
North Dakota’s Attorney General Wayne Stenehjem believes the States are entitled to an injunction “because implementation of the Rule will cause immediate and irreparable harm and deprive the States of the opportunity to present the merits of their case prior to this unprecedented jurisdictional over-reach taking effect.”
In addition to the 31 states, on July 2, a coalition of a dozen industry groups—from agriculture to manufacturers to mining—filed a complaint against the EPA and ACOE over the WOTUS rule.
The goal of the litigations is to delay or defeat the regulations before they go into effect.
Morrisey, in a statement, explains: “While the Clean Water Act gave the EPA and Corps authority to regulate ‘navigable waters’—defined as ‘waters of the United States’—Congress made sure that states would retain their constitutional, sovereign responsibility over non-navigable, intrastate lands and waters. The U.S. Supreme Court has twice rejected the agencies’ attempts to expand their authority (in Solid Waste Agency of Northern Cook County v. Army Corps of Engineers and Rapanos v. United States). However, this latest rule written by the two administrative agencies gives them virtually limitless power over these waters.”
Rules like WOTUS, and the recently announced Clean Power Plan, are lauded by environmental groups who are the likely impetus for the regulatory overreach. Senator David Vitters (R-LA), chairman of the Small Business and Entrepreneurship Committee, sent a letter to EPA Administrator Gina McCarthy regarding “reports that the Agency inappropriately coordinated with outside organizations during the WOTUS rulemaking process.” His statement on the matter offers this reprimand: “For decades, the Department of Justice has recommended that federal agencies do not lobby the general public to build political support for policies promoted by the Executive Branch. In 2014, the EPA embarked on an unprecedented public relations campaign, which may have violated anti-lobbying laws, to promote the WOTUS rule by working closely with outside organizations including the Sierra Club and Organizing for Action, which is closely affiliated with President Obama’s 2012 reelection campaign.”
Apparently, the EPA—which allowed millions of gallons of toxic waste to spill into the Animas River—and its “far-left environmental allies,” believe it can do a better job of protecting waterways, streams and wetlands than the states. A wide majority of states and industry disagree. The coalition hopes the lawsuits—which are expected to be combined into one—will overturn the rule and prove that the EPA has gone beyond it jurisdiction with this expansion of regulatory authority.