The U.S. Environmental Protection Agency (EPA) must be feeling pressure in response to the proposal it announced in March to re-define the term “waters of the United States.” On September 8, 2014, the agency posted on its website a “fact sheet” entitled “Ditch the Myth” in which it denies doing what the regulated community ardently believes: that EPA is seeking through a regulation the basis to claim authority over any moist plot of land. Its explanation for why this fear is unfounded will not reassure anyone. In fact, the announcement coincided with a report from its Science Advisory Board (SAB) which provides the veneer of scientific authority that EPA asserts for every action it takes. Perhaps unintentionally, the SAB report also substantiates the very fears that critics of the proposed rule have expressed.
First, EPA is less than honest when it claims that intermittent (now being identified as “seasonal”) or ephemeral (after rainfall) streams “have been protected by the Clean Water Act (CWA) since it was passed in 1972.” This is blatantly false. EPA has always been coy about the limits of its authority, and has sometimes been reluctant to assert it notwithstanding a basis in its regulations to do so. Historically, the Army Corps of Engineers, which regulates the dredge and fill program under the CWA, eschewed jurisdiction over streams or channels in which there was either a negligible consistent or ephemeral flow. Any federal authority over water has always existed under either of two provisions of the Constitution: navigation or the Commerce Clause. The latter provision has been the basis for the Congress and EPA in the CWA to identify a uniquely federal interest in matters of water quality. EPA admits as much in its fact sheet when it writes, “Everyone lives downstream . . . and are all impacted by the pollution and destruction that happens upstream.”
Second, the agency’s assertion that the “proposed rule does not protect any types of water that have not historically been covered” and “reflects the Supreme Court’s more narrow reading of jurisdiction” is, to put it generously, misleading. The reality is that there are at least three theories expressed by the Supreme Court in Rapanos v. U.S, 547 U.S. 715 (2006) about the ability of the federal agencies to regulate a specific stream. Four existing members of the Court (Chief justice Roberts, and Justices Scalia, Alito and Thomas) have identified some relatively permanent surface water connection as providing a lawful basis for regulation. Two members (Justices Breyer and Ginsburg and presumptively Sotomayor and Kagan) are untroubled by any Commerce Clause restrictions on the question. Justice Kennedy has clearly signaled in Rapanos that a Commerce Clause boundary exists. Unlike the plurality opinion in the case written by Justice Scalia, however, Kennedy constructed a wholly different test – the significant nexus – which has been nearly impossible to articulate and which both the EPA and Corps seek to exploit in the proposed rulemaking.
If this seems exaggerated, look carefully at the recent report of the Science Advisory Board which EPA convened to bless its conclusions. Ever since EPA tipped its hat in 2013 that it was considering a revision to its definitional regulations, it has labored to find significance in all possible manner of hydrologic connections. It has continued to rely on traditional indicia of significance such as the “Ordinary High Water Mark” that the Corps traditionally relied upon to determine its jurisdiction over traditionally navigable waters (and which Justice Kennedy eschewed as a reliable test for the purpose of the CWA). EPA has sought to justify all possible tests, however, under the cloak of science and the ability of a hydrologist to find a molecular connection between one source of water and another. So one should not be surprised to learn that its science advisors are concluding that surface features such as swales, which only a few years ago could not be jurisdictional because they lack an OHWM, should be. Why? Because they are hydrologically connected. So when EPA now claims that only a small segment of diffused waters or ephemeral streams fall into a gray area of questionable jurisdiction, do not be deceived as to how that question ultimately will get decided. And when EPA states in its “Ditch the Myth” fact sheet that the proposed “rule will not be finalized until the scientific assessment is finalized,” do not be deceived. The verdict is already in.
Finally, the agriculture industry must be the source of alarm that caused EPA to publish “Ditch the Myth”. The reason is that of the 23 “myths” that EPA attempts to refute, seven responses (Orwellian “truths”) specifically mention agriculture or farms and at least three others impliedly identify agricultural practices. As one statement illustrates, farmers have reason to worry. EPA states, “All historical exclusions and exemptions for agriculture are preserved.” In fact, the CWA does provide an agricultural exemption for obtaining an NPDES permit at §402 (l)(1), 33 USC at §1342 (l)(1). Congress created an exemption for “discharges composed entirely of return flows from irrigated agriculture [.]” This exemption will not necessarily cover the Midwestern farmer who drains his fields by means of tiles and a drainage ditch. It certainly did not protect the Hardy County, West Virginia poultry farmer who had to defend an enforcement action brought by EPA in 2012. That case is currently in front of the United States Court of Appeals for the Fourth Circuit on appeal. Given this Administration’s willingness to do what it wants, the exemption is a weak shield for farmers.
Responding to the concerns surrounding EPA’s efforts, the U.S. House of Representatives recently passed the “Waters of the United States Regulatory Overreach Act of 2014, H.R. 5078, which would prohibit EPA and the Army Corps of Engineers from adopting their proposed definition of “waters of the United States.” This bill enjoyed some measure of bipartisan support, with 35 Democrats joining 227 Republicans voting for the bill.