Farm Bureau is a strong advocate for private property rights. Our entire economy is based on property that is privately owned and managed. Any erosion of these rights weakens all other rights guaranteed to individuals by the U.S. Constitution. On April 21, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (the Corps) published a proposed rule in the Federal Register that expands federal authority to regulate virtually all waters in the United States. Private property rights will be infringed if this proposed rule is allowed to stand. The proposed rule is called “Definition of ‘Waters of the United States’ Under the Clean Water Act.” It would eventually result in landowners being denied full use of their property and would require them to obtain federal permits before making changes to their land. Farm Bureau urges withdrawal of the proposed rule and calls on Congress to protect private property rights by reining in the federal agencies involved. How Did We Get to This Point? On June 22, 1969, the Cuyahoga River, in Cleveland, Ohio, caught fire. The event was national news and spurred Congress to pass the Clean Water Act (CWA) in 1972. The U.S. Constitution gives the federal government the authority to regulate interstate commerce and trade. Therefore, to be constitutional, the CWA was restricted to “navigable waters.” According to law, navigable waters are considered “waters of the United States.” From the beginning, federal agencies have pushed to expand the limits of that authority. In a 1985 case, U.S. v. Riverside Bayview Homes, the U.S. Supreme Court decided that wetlands located adjacent to navigable waters were subject to federal regulation. Justice Byron White wrote that because the property in question “actually abuts on a navigable waterway,” a permit was required. In 2001, the Court considered Solid Waste Agency of Northern Cook County (SWANNC) v. U.S. Army Corps of Engineers. In this case, the Corps attempted to clarify its authority to regulate potholes and 16
EPA’s proposed rule will erode property rights
ditches from an abandoned gravel pit mine even though the water in question had no connection to any navigable water. The Corps justified its regulation because migratory birds, which crossed state lines, might use the area as habitat. Chief Justice William Rehnquist wrote that to give the Corps authority in this case would be to rule their jurisdiction “extends to ponds that are NOT adjacent to open water…we conclude the text of the statute will not allow this.” The SWANNC decision was important because it upheld a limit to federal regulatory authority. In 2006, the Supreme Court decided Rapanos v. United States and reaffirmed the limits to federal regulatory authority. Justice Antonin Scalia wrote the majority opinion, but Justice Anthony Kennedy’s concurring opinion has received the most attention. Kennedy wrote that “absent a significant nexus, jurisdiction under the Act is lacking.” In other words, unless there is some important connection between the water in question and navigable water, the federal government has no regulatory jurisdiction. Since that time, federal agencies have been working to expand their CWA regulatory authority by demonstrating that “significant nexus” is present. The proposed rule’s preamble harkens to this by stating it “meets the ‘significant nexus’ standard articulated by Justice Kennedy in Rapanos.” What Does This Proposed Rule Do? EPA and the Corps contend these past Supreme Court cases have confused people.
According to the proposed rule’s preamble, “This proposal would…increase CWA program predictability and consistency by increasing clarity as to the scope of ‘waters of the United States’ protected by the Act.” There is no doubt this rule will increase clarity regarding federal regulatory authority. If the rule is finalized, virtually all waters will be defined as “waters of the United States” and will be subject to federal jurisdiction, but that is not the kind of clarity landowners are seeking. According to the rule’s preamble, “The agencies propose that all waters that meet the proposed definition of tributary are ‘waters of the United States’ because they meet Justice Kennedy’s test for jurisdiction under ‘Rapanos.’ In other words, the agencies are asserting that all tributaries have a significant nexus with traditional navigable waters…” Tributaries are also defined in broad terms in the rule: “wetlands, lakes, and ponds are tributaries…The flow in the tributary may be ephemeral, intermittent, or perennial.” An area that has only temporary water flow during a heavy rain can be classified as an ephemeral tributary, subject to federal regulation. The agencies do not believe the amount, frequency or duration of flow should limit the definition of a tributary. The Supreme Court has ruled that federal authority is limited. When Congress passed the CWA, the word “navigable” was included to limit federal authority. Over the last dozen years, there have been numerous legislative attempts to strike the word “navigable” from the law, but there was little support for it. This proposal is an effort to go around Congress and the Supreme Court to expand federal jurisdiction. Farm Bureau opposes this effort. July 21 is the deadline to submit comments to the EPA/Corp of Engineers regarding the proposed rule. For more information or to submit comments visit http://ditchtherule.fb.org. Jon Huffmaster is director of the GFB Legislative Department. Georgia Neighbors • Spring 2014