In a draft rulemaking document submitted to the White House Office of Management and Budget, the Environmental Protection Agency (EPA) is pushing to broaden the definition of the term “navigable waterways.”
The Army Corps of Engineers and the EPA are seeking to redefine rules under the Clean Water Act that would regulate what are defined as navigable waters. This draft rule would allow the EPA to have jurisdiction over literally all streams, no matter the size, within the United States.
What this could mean for Idaho is unclear at this point.
The Idaho Department of Environmental Quality (DEQ) is aware of the proposed rules, according to Barry Burnell, water quality division administrator for the DEQ. But, he said to IdahoReporter.com, “I think it’s still fairly uncertain what the proposal will be … without a document it would be premature to comment on it.”
However, the draft by the EPA has not gone unnoticed. Burnell said, “The governor sent a letter to EPA that outlined some of the state’s concerns about the draft.”
“We’re going to have to fight them,” said Sen. Monty Pearce, R-New Plymouth, “They are trying to take over to expand the power and enforcement of the CWA (Clean Water Act).”
While Pearce is concerned about the EPA’s proposal, he said the battle will be won or lost in Congress, commenting the burden “belongs to our congressional delegation to rein them (the EPA) in.”
It is an important fight, even though water battles nationally do not garner the attention of other issues. Pearce said one ramification of the proposed rules involves farming. He does not think it is out of the realm of possibility that that the EPA could say “You can’t use canal water” on certain food products grown in the state due to concerns of contamination.
U.S. Congressman Mike Simpson, R-Idaho, has co-sponsored legislation called the Defense of Environment and Property Act of 2013. The potential long reach of the EPA through the draft proposal worries him: “To let the EPA begin to regulate all waters of the United States would have devastating impacts on rural towns, farmers and local governments,” said Simpson.
A series of Supreme Court decisions have cast some doubt on the authority of the Clean Water Act to be used to regulate waterways, to the point where 87 members of Congress in a letter to the White House urged the Obama administration to “protect America’s waterways by closing loopholes in the Clean Water Act.”
Two Supreme Court justices in particular have challenged the scope and interpretation of the Clean Water Act and navigable waters.
Justice Antonin Scalia: “In applying the definition to “ephemeral streams, wet meadows, storm sewers and culverts, directional sheet flow during storm events, drain tiles, man-made drainage ditches, and dry arroyos in the middle of the desert, the Corps has stretched the term ‘waters of the United States’ beyond parody.”
Justice Samuel Alito: “The reach of the Clean Water Act is notoriously unclear. Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the act …”
Reed Hopper, an attorney with the Pacific Legal Foundation, said the EPA “has a lot of power,” but it is “defying the intent of Congress” in expanding implementation of the Clean Water Act.
For example, he said “In traditional navigable waters, you have to be able to float a boat.” Hopper said rulings by the high court “unequivocally reject the government’s extravagant claim of authority over virtually all waters and much of the land in the nation.”
He said his organization constantly monitors overreach by the federal government. He fears Congress will not take a strong stand against EPA rulemaking, but his group is “geared up to challenge if anything comes down" from the EPA that oversteps its domain over citizen rights.