December 23, 2013

If every connection is significant, then none are

By Anthony L. Francois Senior Attorney

Last week, I testified before the Environmental Protection Agency’s Science Advisory Board review panel on the EPA’s recent wetlands connectivity report.  Last week’s testimony follows on PLF’s written comments to the Board in October.  EPA is using the connectivity report to justify a proposed new regulation that will attempt to expand the scope of crushing federal regulation over isolated wetlands, ephemeral and intermittent streams, vacant lots in subdivisions, wheat fields, and even dry arroyos under the Clean Water Act.

The United States Supreme Court has now repeatedly told the federal government that it regulates far too broadly under the Clean Water Act’s wetlands permitting rules.  The Constitution’s Commerce Clause only allows federal permitting of projects and activities that impact waters that either have a surface water connection or some other significant nexus with navigable waters.

Both EPA’s new connectivity report and new rulemaking directly repudiate the constitutional limits of federal authority over remote, isolated, and loosely connected water bodies.  The connectivity report offers the view that every single ‘connection’ between two water bodies, no matter how tenuous, is significant.  Not surprisingly, the proposed rulemaking extends permitting requirement to every tributary, not matter how insignificant or distant from actual rivers, and regardless of how infrequently there is even any water in the tributary.  For good measure, the proposed rule appears to require federal permission to maintain irrigation ditches or to plant flowers in your own backyard drainage swale.

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