The Senate Environment and Public Works (EPW) Committee released a report on the Waters of the United States (WOTUS) rule this week, slamming the process and the final regulation jointly produced by the Environmental Protection Agency (EPA) and the Army Corps of Engineers. The WOTUS rule radically expands federal jurisdiction over waters that have little or no connection to flowing streams and rivers.
Following up on multiple committee hearings since 2014, the report emphasizes that the rule is a grab for increased jurisdiction via regulation and notes the many areas of contention between what EPA and Corps officials say the rule will do and what will actually happen if it is implemented.
The report is called “From Preventing Pollution of Navigable and Interstate Waters to Regulating Farm Fields, Puddles and Dry Land: A Senate Report on the Expansion of Jurisdiction Claimed by the Army Corps of Engineers and the U.S. Environmental Protection Agency under the Clean Water Act.” While it does focus on the impacts of WOTUS on the agriculture industry, the arguments support what NSSGA has said both on Capitol Hill and in our current litigation; that this rule is an unprecedented and unreasonable jurisdictional increase that will cost millions and is neither legally nor scientifically defensible.
A nationwide stay of the rule is in effect, but it could be years before this rule is taken up by the Supreme Court. A full copy of the report is available here, and the executive summary is below.
Case studies presented to the Senate Environment and Public Works Committee demonstrate that the U.S. Environmental Protection Agency’s (EPA) and the U.S. Army Corps of Engineers’ (Corps) new regulation defining “waters of the United States” (WOTUS), promulgated on June 29, 2015, will codify many of the most extreme overreaches of federal authority asserted by these agencies.
Although the new regulation is currently stayed, pending the outcome of litigation challenging the rule, these case studies demonstrate that assurances given by EPA and the Corps regarding the scope of the WOTUS rule and its exemptions to the positions taken by these agencies in jurisdictional determinations and in litigation are factually false.
The following conclusions can be drawn from these case studies:
- EPA and the Corps have and will continue to advance very broad claims of jurisdiction based on discretionary authority to define their own jurisdiction.
- The WOTUS rule would codify the agencies’ broadest theories of jurisdiction, which Justice Kennedy recently called “ominous.”
- Landowners will not be able to rely on current statutory exemptions or the new regulatory exemptions because the agencies have narrowed the exemptions in practice and simply regulate under another name.
- If Congress does not act, the newly won ability to challenge Corps jurisdictional determinations and claim exemptions will be moot because the WOTUS rule establishes jurisdiction by rule that will extend to all the activities described in the case studies.
For example, if activity takes place on land that is wet:
- plowing to shallow depths is not exempt when the Corps calls the soil between furrows “mini mountain ranges,” “uplands,” and “dry land;”
- discing is regulated even though it is a type of plowing;
- changing from one agricultural commodity constitutes a new use that eliminates the exemption; and
- puddles, tire ruts, sheet flow, and standing water all can be renamed “disturbed wetlands” and regulated.