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Fall 2013

Clarifying the Clean Water Act

“The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking law,” said well-known author of Atlas Shrugged Ayn Rand.

This quote may ring true to those who are familiar with environmental regulation.  When laws and regulations become to vague that compliance is difficult to achieve. 

For some time there have been efforts to take the word “navigable” out of the Clean Water Act (CWA).  The CWA give the Environmental Protection Agency (EPA) and the Army Corps of Engineers (ACOE) the authority to require permits to discharge pollutants, including dirt and sediment, into waters of the United States.  Such changes would give these federal agencies increased jurisdiction over any waterway that they feel has connectivity to waters of the U.S.

Take for instance the well-known Rapanos case.  Mr. Rapanos was charged with violating the CWA because he filled in what the EPA considered wetlands on his property.  Mr. Rapanos argued that he was not in violation because the wetlands were not “navigable waters” and as such did not require a permit.  But the EPA argued that the wetlands were “hydraulically connected” to navigable water, which qualifies for federal regulation. 

Mr. Rapanos felt that the EPA was trying to make an example out of him by ordering he face a $10 million fine, $3 million in attorneys fees and mandatory jail time.  Fortunately, Chief District Judge Lawrence Zatkoff felt that such a punishment was too harsh and in his decision he stated,
“…we have an American citizen who buys land, pays for it with his own money, and he moves some sand from one end to the other and the government wants to give him 63 months in prison.  Now, if that isn’t our system gone crazy, I don’t know what is.”

On June 19, 2006, the Supreme Court decided that the federal government had exceeded its authority in the Rapanos case, but the justices did not give any further clarity on the terms being argued in the case.

In an effort to get more clarity, according to the federal agencies, the EPA and ACOE have submitted a draft rule to the Office of Management and Budget on the CWA, but the rule has not been made public.  At the same time, the EPA and ACOE released a study that concludes that streams, regardless of their size or how frequently they flow, affect downstream water bodies.  It also concludes that geographically isolated wetlands affect waters of the U.S. 

Such an expansion of law simply means that everything is connected so everything must be regulated.  Current law reads that there must be a “significant nexus” to regulate non-navigable waterways with the Supreme Court weighing in on two separate occasions when federal officials overstepped their bounds. 

Efforts to make changes to the CWA through legislation have been tried for numerous years, but have not been successful.  This step to create a rule and give guidance to federal agencies is not new and is already being met with fierce opposition. 
The National Federation of Independent Business (NFIB) sent a letter to the White House Office of Information and Regulatory Affairs (OIRA), demanding that the draft regulations be returned to the EPA for additional analysis.

“EPA plainly has not met its obligations to understand how this rule will affect small businesses,” the letter contends. NFIB is accusing the EPA of bypassing statutory rulemaking requirements. Specifically, the group says the agency has violated the 1996 Small Business Regulatory Enforcement Fairness Act, which requires regulators to convene panels to assess the effect of proposed rules in small companies.”

Many are waiting for the rule to be made public in the coming months. It is sure that there will be intense debate over this issue that greatly impacts, business, agriculture, and forestry.



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