The U.S. Army Corps of Engineers (USACE) and the Environmental Protection Agency (EPA) are
hunting for more power—and agriculture is in their crosshairs. These agencies, which implement and enforce the Clean Water Act, have made their ambitions known in a proposed rule that would expand the definition of what constitutes "waters of the United States."
Under the proposed rule, these agencies claim the Clean Water Act provides them with jurisdiction over a number of seemingly isolated water bodies. This could mean extra bureaucratic headaches for farmers and ranchers across the country.
The proposed "waters of the United States" definition encapsulates all navigable waters, their tributaries and most controversially, "other waters," including wetlands that have a significant nexus to a navigable water or tributary. EPA and USACE’s interpretation of what constitutes a "significant nexus" can only be described as a 21st century masterpiece of creative lawyering. Make a note to remember the "Migratory Frog Rule." But first, a quick history lesson.
How did we get here? When Congress passed the Clean Water Act, it charged federal authorities with the task of "restoring and maintaining ... the Nation’s waters." Congress does not have the power to regulate the puddles in your driveway. Under the Constitution’s Commerce Clause, the federal government’s authority is limited to "navigable waters."
A casual observer would presume that federal agencies can only regulate water bodies where a ship or boat can be used to transport items in commerce. Through years of enforcement and litigation, EPA and USACE have succeeded in expanding their jurisdiction over water bodies that can’t support navigation. "Navigable waters" is no longer the operative word; instead "waters of the United States" is how these agencies describe jurisdictional waters.
However, the definition of "waters of the United States" is not settled. An earlier case extended Clean Water Act jurisdiction to tributaries because they impact the quality of navigable waters. USACE, however, was swatted down when it tried to claim authority over wholly isolated ponds because migratory birds frequent the watering holes. So, tributaries are included and the Migratory Bird Rule is bunk. It seems simple enough, right?
Enter Rapanos. A 2006 Supreme Court decision, Rapanos v. U.S., caught everyone off guard. The dispute was whether USACE had jurisdiction over a wetland that was adjacent to a tributary. The wetland did not have a surface water connection to the tributary. In a rare 4-1-4 decision, the Supreme Court opened up the definition of "waters of the United States" to multiple interpretations. The most permissive definition, from the government’s perspective, is that the Clean Water Act allows federal jurisdiction over waters with a "significant nexus" to navigable waters.
To expand their authority, the agencies are identifying water bodies they believe have a "significant nexus" to navigable waters. In the "connectivity study," EPA presented findings showing that almost all water bodies are connected with navigable waters. In instances where there is no surface connection, EPA argued subsurface groundwater connections between isolated and navigable waters.
EPA also states that isolated water bodies frequented by frogs are now under their jurisdiction. Instead of the Migratory Bird Rule, we have the Migratory Frog Rule. That seems too cute by half.
Impact on agriculture. The proposed regulation contains several exemptions for agriculture that are already part of the Clean Water Act, such as prior-converted cropland, irrigation ponds and stock ponds. However, if finalized as is, farming and land-clearing activities will come under more intense scrutiny by federal agencies with immense resources and a boatload of patience.
If you are concerned about the proposed definition, there’s still time to act. EPA and USACE are collecting public comments on their proposal at www.regulations.gov
(Docket No. EPA-HQ-OW-2011-0880).
This column is not a substitute for legal advice.