In November, comments closed on a proposal by the Environmental Protection Agency and the U.S. Army Corps of Engineers to redefine “waters of the United States,” as set forth in the Clean Water Act of 1977. While Sen. Edmund Muskie, Maine Democrat, author of the 1977 law, required 88 pages for his entire statute, this spring’s Federal Register notice ran 370 pages, not counting appendixes, one of which hit 300 pages alone. Little wonder the new “wetland” rules have generated controversy and a likely Supreme Court case.
Over the years, the EPA and the Corps of Engineers read “waters of the United States,” and hence their authority to regulate private property, both broadly and ambiguously. Unfortunately for landowners in their crosshairs, their interpretation is reminiscent of Justice Potter Stewart’s views regarding hard-core pornography, “I know it when I see it.” Worse yet, such a sighting is followed by a cease-and-desist order violation of which results in fines of tens of thousands of dollars a day, and double that if the violation is “willful.” Worst of all, landowners could not challenge those orders because they remained “unenforced” until violated.
For example, when the EPA declared arid lands owned by Dr. Larry Squires of Hobbs, New Mexico, “waters of the United States” because birds landed in ponds created by sporadic heavy rains, Dr. Squires challenged the order; but, his lawsuit was dismissed as untimely. A federal appeals court ruled his inability to question whether his lands were “wetlands” without paying hundreds of millions of dollars in fines or going to jail was not “constitutionally intolerable” given that it would “undermine the EPA’s regulatory authority.” Fortunately, in 2012, the Supreme Court unanimously ended this abuse in a lawsuit by the Pacific Legal Foundation.
Nonetheless, targeted landowners did reach the Supreme Court. In 1985, deciding at which point “water ends and land begins,” the Court upheld a definition that included wetlands that “actually abut on” traditional navigable waters. In 2001, the Court held that “non-navigable, isolated, intrastate waters,” even those used by migratory birds (remember Dr. Squires) were not within the Clean Water Act.
In 2006, ruling on whether the Clean Water Act included intrastate wetlands adjacent to non-navigable tributaries of navigable waters, the Supreme Court vacated the rules of the Army Corps of Engineers. On behalf of a four-member plurality, Justice Antonin Scalia required “continuous surface connection to bodies that are ‘waters of the United States’ in their own right,” but Justice Anthony M. Kennedy, while concurring in striking down the rules, demanded “a ‘significant nexus’ to waters that are or were navigable in fact or that could reasonably be so made.”
In 2007, the EPA and the Corps of Engineers responded to the court’s rulings and in late 2008, after the receipt of 66,000 comments, issued new guidance on identifying “waters of the United States.” Then, in 2011, the two agencies proposed guidance that expanded significantly the reach of the Clean Water Act, including over vernal pools, prairie potholes, natural ponds and playa lakes. In response to 230,000 comments, many of which demanded a formal rule-making, the agencies issued that proposal in April.
Living up to its reputation for creating, as liberal law professor Jonathan Turley put it, “a constitutional tipping point,” the Obama administration’s new rules constitute a historic land grab. Contrary to Justice Kennedy’s instruction, the rules: extend to all waters (not just wetlands) and all waters adjacent to non-navigable interstate waters; create a jurisdictional concept “similarly situated waters” by misquoting the justice; and ignore his demand that an agency “establish nexus on a case-by-case basis when it seeks to regulate wetlands based on adjacency to non-navigable tributaries.”
Worse yet, in violation of the Constitution’s commerce clause, they assert authority over waters that are neither instrumentalities nor channels of interstate commerce and that do not substantially affect interstate commerce.
Over its past six years, the Supreme Court has ruled unanimously against the Obama administration’s position on 20 occasions. These new wetland rules may make 21.
• William Perry Pendley, a lawyer, is president of Mountain States Legal Foundation in Denver and author of “Sagebrush Rebel: Reagan’s Battle With Environmental Extremists and Why It Matters Today” (Regnery, 2013).