When Dry Land is Called Wet   3 comments

The Army Corps of Engineers and the EPA have a history of exceeding their authority under the Clean Water Act. Some of this history is attributable to ambiguity in the law, but most is the result of willful overreach. According to the U.S. General Accounting Office (GAO), local districts of the Corps “differ in how they interpret and apply the federal regulations when determining what wetlands and other waters fall within the [Clean Water Act’s] jurisdiction.” The GAO reports that even Corps officials working in the same office disagree on the scope of the CWA and that “three different district staff” would likely make “three different assessments” as to whether a particular water feature is subject to the act.

This ambiguity is no accident.

Federal enforcement practices differ from district to district because “‘the definitions used to make jurisdictional determinations are deliberately left vague. Consequently, federal officials are able to assert the broadest possible interpretation of Clean Water Act jurisdiction on a case-by-case basis so as to avoid any challenge to their regulatory authority.

Examples of vague regulatory definitions abound. While the Clean Water Act prohibits unauthorized discharges of pollutants into “navigable waters,” the Corps and the EPA have extended their enforcement of the act to non-navigable waters, such as “streams (including ephemeral streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds” and any wetlands adjacent thereto. Federal regulations define “wetlands” as those areas “inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.”

This definition of “wetland”7 is so broad that it encompasses areas that are wet only “for one to two weeks per year.”  In other words, a “wetland” may be mostly dry land. Under this definition, approximately 100,000,000 (100 million) acres of wetlands are located in the Lower 48 states—an area the size of California.  Approximately 75% of these wetlands are located on private land. With half of its territory covered by wetlands, Alaska has the largest wetland acreage. We’re known for our mountains, but whatever isn’t vertical is underlain by permafrost soil. So, even though the northern half of the state is a subarctic desert in terms of moisture fall, what moisture we get collects on the surface of the land, thus meeting the definition of a “wetland”. That means that 174,683,900 of our 403,247,700 acres (174 million or 403 million acres) are deemed wetlands by the US Fish and Wildlife Service. Consequently, development in Alaska is extremely difficult and expensive and often not permitted by the federal government, even on private and state-owned lands. Florida is next in designation with 11 million acres, then Louisiana with 8.8 million), Minnesota with 8.7 million, and Texas with 7.6 million.

The Corps and the EPA have interpreted the term “discharge” to include the mere movement of soil in the same area without any addition of material. Contrary to ordinary use and common sense, “adjacent” becomes “neighboring” (which might mean miles away) and “tributary” includes “swales” and “storm drains.” These excessively broad definitions jeopardize economic vitality. By allowing regulators almost unfettered discretion to interpret the law, the CWA forces businesses and individual property owners to operate under a cloud of uncertainty.

The prospect of regulatory takings under the CWA is difficult to predict, a development that discourages investment because it renders private property protection ambiguous. These broad definitions have sparked such egregious agency overreach that the U.S. Supreme Court has, on two separate occasions, intervened on behalf of private property owners.

  • In 2001, the High Court held that the Corps and the EPA could not regulate isolated, non-navigable water bodies and emphasized that there are statutory and constitutional limits to the scope of the Clean Water Act. The Court also affirmed that regulation of local land and water use was the primary responsibility and right of state and local governments. The ruling suggested that management of natural resources should be conducted on a site- and situation-specific basis.
  • Likewise, in 2006, the Court reiterated that the Corps and the EPA could not rely on a boundless interpretation of the act and regulate all water bodies with any sort of hydrological connection to “navigable waters.”

These rulings did not dissuade the Corps or the EPA from their goals. More recently, the Corps has tried to scale back the long-standing farm exemption for prior converted croplands—an exemption that covers 53 million acres—without utilizing the formal rule-making process. The Corps also asserts that it can now regulate upland drainage ditches as “navigable waters” under its Nationwide Permit Program—an expansion of regulatory power that could affect almost every development project in the country.

But these efforts to enlarge the CWA’s regulatory scope pale in comparison to the expansion of the act contained in a new EPA and Army Corps of Engineers agency guidance document entitled “Guidance Regarding Identification of Waters Protected by the Clean Water Act.” This guidance asserts federal control over virtually all waters in the United States. Indeed, this putative reach is so broad that the agencies refuse to categorically exclude even artificial ponds and swimming pools from federal regulation.  It is undoubtedly the largest expansion of power ever proposed by a federal agency.

This has already been sent to the Office of Management and Budget (OMB) for approval.

3 responses to “When Dry Land is Called Wet

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  1. I’ve read about the over reach of the EPA with the Clean Water Act. Evidently, if you have a mud puddle, your land will become a wet land due to the creatures and flora that live there…What rubbish!
    And the Army Corps of Engineers did a great job for New Orleans, right?


    • My husband and I have a cabin site that we’re “proving” for the State of Alaska. When it was first assessed by the Borough (like a county) here, it was worth $20,000. Not bad for slightly less than 20 acres. Then, it suddenly came back worth $5,000. We think it’s because of a bog at the bottom of the property, about 10 feet away from a creek. Technically, it’s a wetlands. It’s maybe a half acre — possibly less. The resident moose likes it a lot. We’re planning our cabin up on the hillside, well away from it. It cemented in our minds that we are not asking for a building permit. Since we’re not building anything grand, chances are they won’t notice a while and then we will ask forgiveness.

      It’s what Sarah Palin did with her cabins outside of Wasilla.


  2. Good for you! Sounds wonderful!


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