The Environmental Protection Agency and the Army Corps of Engineers have proposed a rule that will significantly expand the definition and jurisdiction of waters protected under the Clean Water Act (CWA).
The federal agencies claim that the proposed rule will make the process of identifying “waters of the United States” less complicated and more efficient, but a closer look at the proposed rule’s language finds that the rule amounts to nothing more than a significant overreach of federal regulatory power.
The current jurisdictional scope of the CWA is “navigable waters,” which are defined as “waters of the United States, including the territorial seas.” According to the EPA and Corps, the proposed rule would revise “waters of the United States” to be consistent with science and recent Supreme Court cases.
But the science upon which the agencies base their claim is not yet final and is still under peer review. Moreover, the rule would reflect the views of one Supreme Court justice that “waters of the United States” may encompass certain categories of water that possess a significant nexus to navigable waters or waters that could be designated as reasonably navigable, and that the CWA can be reasonably interpreted to cover impermanent waters.
This all adds up to a rule that would establish tributaries – regardless of their size, permanency, man-made or natural status – as “waters of the United States.” It would also establish “adjacent waters” – bordering, contiguous, or neighboring waters separated from other waters by dikes or barriers – as “waters of the United States.” Finally, the proposed rule would grant federal regulators unlimited discretion in deciding whether water bodies not enumerated in the statute are “waters of the United States.”
The issue loomed large at a hearing convened by Arizona Rep. David Schweikert and Rep. Paul Gosar earlier this week at the state Capitol. The congressmen, along with Reps. Matt Salmon and Trent Franks and state Sen. Gail Griffin heard testimony that the proposed rule poses serious concerns for Arizona.
The proposed rule could bring our canal systems, drainage systems, ditches – arguably “tributaries” according to the language – and private property under federal government control and frustrate our local governments’ and tribes’ abilities to manage water allocation and usage efficiently.
Any business that has had to deal with the behemoth federal bureaucracy knows that EPA compliance is a time consuming and costly process. According to the U.S. Chamber of Commerce, small businesses and small communities are likely to be hit the hardest by the definition change. The U.S. Chamber has asserted that the EPA cannot factually certify that the proposed rule would not impose a major economic impact on a substantial number of small governments, organizations, and businesses, when the rule would subject vast areas to CWA jurisdiction for the first time.
The EPA and Corps have invited the public to comment on the rule by July 21. Unfortunately, the public lacks the benefit of the final version of the scientific report that the agencies claim supports the rule’s changes. In addition, the economic analysis released by the agencies boasting the economic benefits of the rule change has been deemed by experts as seriously flawed.
But perhaps the greatest offense committed by these agencies is their failure to gather the input of important stakeholders across the country, like farmers, ranchers, homebuilders, industry and local government representatives, in the development of such an over-inclusive rule that is likely to directly and negatively impact their work environments and citizenry.
Water is a precious resource and is particularly important in the West because of its scarcity. Here in Arizona we address our unique water needs through innovation, collaboration, and local control. The feds could learn a lesson from us.
Glenn Hamer is the president and CEO of the Arizona Chamber of Commerce and Industry.