The Swamp Stomp
Volume 18, Issue 51
Last week, the US Environmental Protection Agency released a draft version of its new Waters of the US definition. During the signing ceremony there were a few statements which spoke to the spirit of the regulation, specifically, the wisdom of the farmers,developers, and the manufacturing industry to know what is best for the land. I am afraid history is against them on that point. Several of the presenters also made mention that a Waters of the US assessment is something that any landowner should be able to perform as a Do It Yourself (DIY) project, much like building a deck or installing a screen door. This would eliminate the need for environmental consultants, civil engineers, planners, surveyors, attorneys, and many civil service positions. Oh, and yes, wetland training companies like us.
This is obviously a concern as the Clean Water Act has spurred on thousands of jobs in the past 40 years centered around environmental protection and compliance. None of this was disclosed in the associated economic impact analysis other than what was done for this proposed regulation.
Before you fire up your resume and consider a career change there is a bit of good news. Wetlands are still regulated and the fact that they require the presence of wetland soils,vegetation and hydrology is just complicated enough to keep most DIYers out of the swamp. Plus, the new regulation is 253 pages long. A DIY screen door is usually 2 pages with lots of pictures.
There is a significant legal question that I plan on asking in the public comment process. It is a bit complicated, but it may prove to be a major flaw in the regulation. It has to do with the state assumption of the Waters of the US.
Under section 404(g), states can elect to assume the federal 404 program. Thus far, only New Jersey and Michigan have done so. I have had the benefit of living through New Jersey’s assumption process so I have a unique perspective and experience on how the assumption process works.
When the Clean Water Act was passed in1972, it was the intention of the writers that all wetlands and waterways would be jurisdictional. This was underscored in the writing of the 2015 Clean Water Rule. What was not mentioned in the 2015 Clean Water Rule was the fact that initially the US Army Corps of Engineers (Corps) had granted an exemption in the form of a general permit (#26) to allow the filling of up to 10 acres of head-water wetlands. These wetlands may or may not have a physical connection to a traditional navigable water way. The was to reduce the regulatory burden on both the Corps and the public. This was an extremely unpopular nationwide permit and it was later reduced to one acre of fill and then ultimately it was eliminated entirely. However, the point being is that these wetlands and waterways were regulated from the onset of the Clean Water Act.
The US Supreme Court chimed in through a series of cases that confirmed that adjacent wetlands are federally jurisdictional and that isolated wetlands are not. Then came the Rapanos case.The nine Justices could not come to a consensus on that case and the lower courts’ decisions were upheld. What is unfortunate is that the current regulations and the proposed regulations are both based upon individual Justices’ opinions. What is before us today represents two opposing sides. The Rapanos case was vacated, so why are using it to make decisions today? I guess it’s just pick your favorite Justice and go with what suits you. This is aside from my point but also an important issue.
The issue is that under this new regulation, the federal government will not regulate wetlands that do not pass the Scalia physical connection test. How then can the states assume these waters under section 404(g)? If they are not regulated by the federal government, there is nothing for the state to assume. The spirit of the EPA proposal is to pass these contentious wetland decisions over to the states. However, if they are non-jurisdictional then the federal government does not have the right to pass them to anyone. It’s not their land! This then becomes a taking issue and the state would only be able to regulate these wetland systems though a state-passed imminent domain process. That will be fun – not.
This is not what New Jersey and Michigan did. They assumed the wetlands (all of them) that were regulated by the federal government. There was a lot of talk about grandfathering when the state laws were passed and there were grandfather provisions due to the more restrictive state versus federal implementation of section 404. However, it was never an issue that the state had the right to regulate the wetlands that were formally regulated by the federal government. At the time, all wetlands were Waters of the US, so the state could assume all of the waters of the state in their entirety.
This new regulation eliminates many of the head-water wetlands that were considered federally jurisdictional. Since some of them only had a biological or chemical significant nexus to a Traditional Navigable Waterway and not a physical connection, they would no longer be considered federally jurisdictional. The idea put forward by the EPA that we should not worry, because the state will regulate these waters if they are important, is disingenuous. If the federal government cannot regulate them, the state would need to create some sort of nexus that would bring these under their control. Forty-eight states, the US Territories, and the Tribes do not have this legislation in place.
I need to make one last point that regards farming. When the Clean Water Act was passed there were farmland exemptions to the Act. This was meant to specify what could and could not be done to a wetland on a farm. This was generally a more relaxed standard than other non-farm activities. However, the wetlands were still regulated. This underscores the intent of the writers of the Clean Water Act to regulate all wetlands and waterways in the US.
The ultimate solution to this issue was described by Justice Alito in the Sacket case of 2012. “Real relief requires Congress to do what it should have done in the first place: provide a reasonably clear rule regarding the reach of the Clean Water Act.” Sackett v. Environmental Protection Agency (3/21/2012)
Remember, regulations are an agencies interpretation of a law. If they get it wrong, it is up to us to comment and correct them. You will have that opportunity as soon as the regulation is published in the Federal Register in the next few weeks. Your job may very much depend up where this ends up. Please read it and comment.