Last Wednesday, the debate over what ought to be classified as lands came to yet another head in the decades-long discussion over the definition of “waters,” as the House and Senate held a joint hearing over an attempt by the EPA and the Army Corps of Engineers (ACE) to redefine, yet again, just what the federal government considers a “water of the United States.”
In 1972, building on previous laws regarding discharges of waste materials into waterways, Congress passed the Clean Water Act to set strict guidance as to pollutants released into “navigable” waterways. Rivers were literally catching on fire, the Cuyahoga in Ohio being the most famous example. “Navigable” was understood to mean rivers, lakes, bays, and larger bodies of water. But over the course of the next two decades, that definition of “navigable” became ever more marginal as the environmental movement pushed to bring more and more land under federal regulatory control.
Take the case of the Double Diamond Ranch, south of Reno, Nev. It sat in the high desert of Nevada, arid, though it had a spring in the middle. Thousands of acres, it required six acre-feet, or more than 260,00 cubic feet, of water merely for grass to grown on it.
When the ranch was sold to be developed into a housing community, the owners were faced with challenges from the environmental movement, which claimed that the property included wetlands, “navigable waters of the United States,” of more than 200 acres around the spring, the prime area for development. “Navigable waters” in this case referred to artificially damp land in a desert. In the end, the owners demonstrated that the so-called navigable waters became dry desert lands when the “acre feet” were no longer sprayed over the land.
The story of Double Diamond Ranch is not unique. A battle has commenced over just what “navigable” means, and just what the EPA and ACE could regulate under the Clean Water Act. The stakes were high, especially for farmers and ranchers, who rely so heavily on water and often find their most productive lands coming under the scrutiny of regulators.
The question this raises is straightforward: Did Congress intend, in passing the CWA in 1972, that the federal government regulate every potential waterway — navigable, adjacent to a navigable waterway, isolated from other bodies of water, etc.? The environmental movement and the federal government said yes, it did, and created a tortured series of justifications for the regulation of marginal wetlands: the “glancing goose” theory, for instance, according to which the possibility that migratory birds might land in an isolated wetland could trigger regulation; or, in interstate commerce, the “fur and meat” theory that federal authorities could claim that animals living in “navigable waters” triggered that the area fell under their jurisdiction. (In the criminal prosecution of James Wilson for Clean Water Act violations, the federal government produced an expert to testify on the interstate trade in “muskrat meat” and beaver fur, in order to establish that an interstate-commerce nexus existed.)
These bizarre assertions of authority have meant that farmers and ranchers — already facing a competitive disadvantage on the world market owing to a massive regulatory burden – have had to face an illogical maze of rules and permitting in order to engage in the important work of bringing food to the marketplace. The reality is that no farmer has been safe. You could be in the High Desert of Nevada, requiring gallons upon gallons of water in order to make dry land arable, and still face the onerous requirements of section 404 of the Clean Water Act. You could be miles from a navigable waterway, farming in an isolated area, and the EPA and ACE could force you to spend time and money on a baffling series of permits, with no guarantee of approval, no timeline as to an answer, and the potential of having to engage in “wetland mitigation” or “banking,” whereby you are required to create wetlands on your own land or buy land elsewhere to create them.
In a series of challenges to the federal government’s interpretation, the Supreme Court said that the Clean Water Act did not give the federal government the power to regulate isolated wetlands. It ruled that there had to be a “substantial nexus” to interstate waterways or interstate commerce. That, one would think, would settle the argument, at least vis-à-vis the issue of requirement of “navigability.”
Undeterred, however, the Left immediately set about the audacious effort to remove the concept of “navigability” from the Clean Water Act — if “navigability” is a confusing term, simply remove it from the statute, and the EPA and ACE can move forward in their effort to regulate ever more marginal wetlands. It didn’t work legislatively, however, as its congressional champions were never able to muster enough support against the voices of America’s farmers, ranchers, and small-business owners who saw just what this plan might add to their already hefty regulatory burden.
Enter the Obama administration, eager to step in where, in their view, Congress has failed to act. The EPA and ACE initiated a new rulemaking that, as they argued at last week’s hearing, would not only bring greater clarity to the concept of navigability but would also reduce the jurisdiction of the federal government. That latter claim flies in the face of a half-century of both environmental and bureaucratic precedent. Every environmental initiative that focuses on land-use regulation has sought and continues to seek greater amounts of land under federal regulatory control. The whole purpose underlying the recent rulemaking was to maintain such regulation despite the Supreme Court’s series of decisions.
In a hearing in which two competing narratives were being repeated and reinforced, EPA Administrator Gina McCarthy and Assistant Secretary of the Army for Civil Works Jo-Ellen Darcy stated repeatedly that they were acting under the guidance of the Supreme Court. The most cogent and insightful counter to that assertion came from Senator Mike Crapo (R., Idaho). Crapo, understanding both what the Supreme Court has said and what federal regulators are attempting, stated plainly that, rather than obeying the Supreme Court decision, these agencies are “flipping” the decisions on their head, making the dissenting viewpoints (rather than the prevailing one) the policy of federal regulators.
The impacts are clear. Former congressman Adam Putnam, now Florida’s commissioner of agriculture, said that the proposed rules would increase federal jurisdiction by 20 percent in Florida, a state that already has massive federal clean-water regulation, and pull thousands of acres of farmland into a regulatory nightmare. A farmer’s precious time and resources would be diverted from providing food for America to satisfying some bureaucrat’s paperwork requirements.
This drives up the cost of food on America’s tables and also makes American goods more expensive and less competitive in the world marketplace. In an era when other nations can undercut the U.S. through the lightness or even absence of their regulatory burdens as well as through their massive subsidization of farmers and agricultural products, the last thing our farmers need is more federal rules.
As was clear from the cooler heads at Wednesday’s hearing, the proposed WOTUS rules need to be scrapped now.
— Andrew Langer is president of the Institute for Liberty. He has been active in the reform of federal clean-water rules for more than two decades.