Swamp Stomp
Volume 16, Issue 40
In a United States Senate report, the United States Senate Committee on Environment and Public Works majority staff found that the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) will overstep their authority if the new regulation defining “waters of the United States” (WOTUS) becomes law. WOTUS was put forth by the EPA and the Corps on June 29, 2015. The committee came to this decision by looking at case studies that were presented to the committee. Most, if not all, of the case studies the committee based their decision off of predated the June 29, 2015 regulation. The new regulation is currently stayed in court pending the outcome of litigation that challenges the rule.
The committee found that these case studies that assurances made by the EPA and the Corps concerning the scope of the waters of the United States rule and its exemptions to the positions taken by these agencies in jurisdictional determinations and in litigation are factually FALSE. Through the case studies, the committee determined that:
“The 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 allowed 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. 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.
Unless Congress puts forth new legislation, the newly won ability to challenge Corps jurisdictional determinations and claims exemptions will be moot because the WOTUS rule establishes jurisdiction by rule that will extend to all the activities described in the case studies” (U.S. Senate Committee on Environment and Public Works Majority Staff).
National Cattlemen’s Beef Association (NCBA) Environmental Counsel Scott Yager contends that the report reveals that the EPA is enforcing WOTUS even though it is currently stayed in court and that the EPA is regulating common farming activities such as plowing. Yager hopes that the report will get Congress to pass legislation that would prevent the EPA from expanding their jurisdiction over all waters. It is Yager’s belief that these findings will lead to more Congressional oversight over the Environmental Protection Agency. According to Yager, NCBA will continue to combat WOTUS both in the courts and legislatively.
Sources: “EPA Enforcing Waters of the U.S. Rule.” WNAX. Radio 570, 21 Sept. 2016. Web. 27 Sept. 2016.
U.S. Senate Committee on Environment and Public Works Majority Staff. “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.” Beefusa.org. United States Senate, 20 Sept. 2016. Web. 27 Sept. 2016.