Swamp Stomp
Volume 14, Issue 26
Happy Independence Day!
The proposed Clean Water Act rules are out for public comment and have been extend to October 20, 2014. They were originally due on July 21, 2014. The reason for the extension was largely due to calls from Congress to extend the review time.
On June 10, 2014 the Library of Congress’s Congressional Research Service (CRS) published a summary document of the new rules. The original 4 page waters of the US rules with the 300 + page preamble and the 371 page EPA Science Advisory Board report are summed up very nicely in a mere 23 page report.
The CRS report is prepared to help members of Congress digest the significant volumes of paper associated with the new rules. It is significant as it is probably the only thing the members of Congress (most likely their staff) will read on this matter. The report identifies two significant items.
The first question that is address is whether the new rules expand the geographic jurisdiction of the federal government. The agencies have contended that these new rules do not. However, the CRS reports that there would be a 3% expansion of areas that are not currently jurisdictional and under the new rules would be jurisdictional. In addition there is a new expansion of about 17% “other waters” that under the 2003/2008 guidance were not jurisdictional and now would be so.
The second point is about money. At the agency level there would be an increase cost to regulate that is estimated in the range of $162 million to $279 million per year. However, they are also quick to point out that there will be a net benefit of $318 million to $514 million per year due to reduced enforcement costs. At no point is the economic impact to the public discussed.
The conclusion of this CRS report is that despite the agencies claims that there is no expansion of government jurisdiction, it appears that there is in fact an expansion. The agencies argue that the 3% new area was regulated historically and these rules are just going back to the good o’ days when these areas were regulated.
Perhaps you are wondering why these areas are no longer regulated. The Supreme Court ruled in a number of cases that areas that lacked a commerce connection were not subject to the Clean Water Act. The bulk of these new waters of the US rules are based largely on Justice Kennedy’s definition of significant nexus. However it appears that the new rules may have overlooked an important aspect of what a significant nexus really means.
In his lone Rapanos opinion, Justice Kennedy suggested that areas that have a significant nexus to a traditional navigable waterway are subject to the Clean Water Act. This nexus could take on the form of an environmental impact to downstream water quality. However, under the Commerce Clause this impact only establishes jurisdiction if the agencies can prove that the impact effects interstate or foreign commerce. Unfortunately, this commerce connection concept has been lost in all of the recent rhetoric.
There is one other very significant point under the Commerce Clause. Article 1, Section 8, Clause 3, of the Constitution empowers Congress “to regulate Commerce with foreign Nations, and among several States, and with the Indian Tribes.” This power is limited to Congress. The current expansion of waters of the US has been proposed by the Executive Branch, not Congress. Rules and regulations are the purview of the Executive branch. However, the Executive Branch is not empowered to expand into areas and regions not authorized by Congress. To underscore this point, Supreme Court Justice Alito in the Sackett case called upon Congress, not the President to establish a clear rule defining waters of the US.
One might argue that any expansion of waters of the US without the expressed consent of Congress is inconsistent with Article 1, Section 8, Clause 3, of the Constitution of the United States.
Perhaps this might be worth mentioning in your comments that are due on October 20, 2014. It might also be a good idea to write to your federal representatives and let them know how you feel about these rules. There is a bill floating around the House looking to de-fund the rule making effort of EPA and the Corps on this matter. No matter your position on these rules, Congress needs to hear from you.