Do feds seek power over every pond, puddle and pothole?
By Reed Hopper
For the Capital Press
Are federal regulators devising a plan to stretch their control of water and land use beyond all legal and constitutional limits on the central government’s power?
There is reason to be concerned, as the U.S. Environmental Protection Agency and the Army Corps of Engineers push forward with a new rule on the scope of their authority over water and land under the Clean Water Act.
The two agencies claim that their new rule will be guided by EPA’s report on “connectivity” — i.e., on “connections” between water bodies that aren’t navigable and those that are. This is hardly reassuring, because the current draft of the connectivity report seems designed to serve an agenda of unlawful expansion of federal power under the Clean Water Act.
For instance, the report simply asserts that all streams — no matter how small or intermittent — are interconnected and have an effect on downstream navigable waters. The report fails to show if those effects are significant or even how to determine significant effects.
In other words, the report essentially ignores U.S. Supreme Court Justice Anthony Kennedy’s holding in the 2006 case of Rapanos v. United States — that waters must have a significant effect on traditional navigable waters in order for the federal government to have jurisdiction. A mere connection is not enough.
Secondly, the connectivity report uses the terms “stream,” “wetlands” and “adjacent” differently than the Supreme Court and the agencies currently use those terms. The report uses broader terms, apparently to expand the reach of federal authority. At times, it even includes groundwater, which the courts have routinely excluded from federal jurisdiction.
Finally, the timing of the rule-making process is suspicious. The new jurisdictional rule is being proposed even before the connectivity report has been finalized. Indeed, EPA’s Science Advisory Board won’t hold a hearing on the draft connectivity report until December, yet a draft of the new jurisdictional rule has already been written and submitted to the Office of Management and Budget, but not yet been made available to the public.
This inversion of the process suggests that the “fix is in” — that EPA and the Corps will push forward with an expansive and unlawful interpretation of their regulatory authority regardless of what the connectivity report shows.
We seem to be witnessing an attempt to expand federal power so broadly that it could potentially cover every pond, puddle and pothole in the country. This kind of micro-management of property, water and land use decisions from Washington, D.C., is at odds with Supreme Court precedent, the spirit and letter of the Clean Water Act, and the U.S. Constitution’s limits on federal authority. Federal regulators should be warned that if their new water rule veers away from statutory and constitutional principles, they risk sailing into a lawsuit.
Reed Hopper, a principal attorney with Pacific Legal Foundation, successfully argued the case of Rapanos v. United States at the U.S. Supreme Court in 2006. The formal comments that PLF submitted on EPA’s draft connectivity report are available at: http://blog.pacificlegal.org/wordpress/wp-content/uploads/2013/10/PLF-Comments-Oct-11-2013.pdf