Clean water rule needs more than clarity

New Clean Water Act regulations need to be clarified and include a right to challenge EPA and Corps of Engineers decisions.

Our View

The effort by the federal Environmental Protection Agency and the U.S. Army Corps of Engineers to clarify the Clean Water Act needs clarification itself — and more.

The agencies have come up with a massive rule that would help their officials define the “waters of the U.S.” Such waters are addressed in the Clean Water Act, whose goal is keeping territorial oceans, rivers, lakes and streams free of pollution.

“The proposed rule will reduce documentation requirements and the time currently required for making jurisdictional determinations,” according to the rule’s summary.

So far, so good. We like clarity in laws. We also like efficiency in government.

The EPA and the Corps say the rule would clarify uncertainties created by three Supreme Court precedents. Unfortunately, it also opens the door to further uncertainties. A look at the list of the rule’s definitions illustrates this shortcoming.

One of the definitions of waters of the U.S. that would be covered by the rule says: “On a case-specific basis, other waters, including wetlands, provided that those waters alone, or in combination with other similarly situated waters, including wetlands, located in the same region, have a significant nexus to a water identified in paragraphs (a)(1) through (3) of this section.”

“Significant nexus” is further defined as wetlands or streams that drain into rivers or oceans and have a “significant and more than speculative impact.”

We admit to not being lawyers or environmental experts when it comes to legalese, but these sentences need translation into English. In so many words, they say, “The EPA and the Corps will decide whether any streams or wetlands are covered under the Clean Water Act.”

That’s a problem, for two major reasons.

First, people, even EPA and Corps officials, can make mistakes and wrongly designate wetlands or seasonal streams as waters of the U.S. It’s bound to happen in the future, because it’s happened in the past.

Second, court cases have demonstrated that the EPA in the past did not take kindly to landowners who questioned their decisions. Landowners were not allowed to question the EPA’s judgment without paying a fine of up to $75,000 a day. In 2011, a unanimous U.S. Supreme Court found that the EPA was wrong and must provide the opportunity for landowners to challenge wetland designations. Our question is this: Will the new rule clarify that landowners have a constitutional right to their day in court without risking huge fines?

We looked through the rule. We found that the Paperwork Reduction Act was mentioned, as was the Unfunded Mandates Reform Act. So was the executive order that requires “federal actions to address environmental justice in minority populations and low-income populations.”

But no mention could be found of U.S. citizens’ right to their day in court.

Unless and until that is included, we suggest the EPA and the Corps take their new rule and, in accordance with the Paperwork Reduction Act, run it through the shredder.



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