February 21, 2012

Sen. Rand Paul proposes bill (S.2122) to clarify the definition of “navigable waters”

By M. Reed Hopper Senior Attorney

In 1972, Congress passed the Federal Water Pollution Control Act (subsequently amended as the Clean Water Act).  That law prohibited the discharge of pollutants into “navigable waters” without a federal permit.  Although government agencies initially interpreted “navigable waters” to mean traditional navigable waters (i.e., as conduits of interstate commerce), the Corps of Engineers and EPA soon began to expand their regulatory jurisdiction under the Act to cover nonnavigable waters, including ponds, mudflats and puddle-sized “wetlands.”  Twice, the Supreme Court has had to smack these agencies down for exceeding their authority.

In its SWANCC (2001) decision, the High Court chastised the government for its ever-changing definitions of “navigable waters” and held the Corps and EPA could not regulate remote water bodies without raising serious constitutional questions.  In its Rapanos (2006) decision, the Court affirmed there are limits to the Clean Water Act and these agencies could not regulate all waters in the United States.  But, the Corps and EPA are still playing fast and loose with the law, asserting control over virtually every wet spot in the country.

Unfortunately, the debate over the scope of federal authority under the Clean Water Act  is not just an academic exercise.  How the federal government defines “navigable waters” affects the liberty and livelihood of real people.  Literally millions of Americans across the Nation face ruinous civil fines or criminal penalties if they guess wrong about the reach of the Act.  Just ask the Sacketts.


Chantell and Michael Sackett own a half-acre parcel of land near Priest Lake, Idaho, that they bought to build a home.  The lot sits in a built-out subdivision.  It has an existing sewer hookup and is zoned for residential construction.  Prior to their purchase, the Sacketts undertook a due diligence investigation.  None of their research indicated any Clean Water Act permitting history or requirements for the property.

The Sacketts began some earthmoving work with all local building permits in hand.  But Federal officials immediately ordered the Sacketts to stop work.  Months later, EPA sent the Sacketts a “compliance order” under the Clean Water Act asserting the Sacketts property contains a wetland subject to federal regulation that the Sacketts illegally filled with gravel without a federal permit.  On average, the cost of a “fill permit” can exceed $270,000.  The “compliance order” prohibited the Sacketts from constructing their home, as previously authorized by local authorities.  And, it required the Sacketts immediately to begin substantial and costly restoration work, including removal of the fill material, replanting, and a three-year monitoring program during which the property must be left untouched.  Further, the compliance order warned the Sacketts of overwhelming civil penalties (up to $75,000 per day) and possible criminal sanctions for failure to abide by its dictates.  Although the Sacketts dispute the presence of wetlands on their half-acre lot, the EPA provided the Sacketts neither any proof of violation nor an opportunity to contest EPA’s claims.  With the help of Pacific Legal Foundation, the Sacketts went to court claiming agency overreaching had denied them their constitutional right to due process.

Contrary to some federal officials, who apply their heavy handed enforcement policies without regard to the impact on ordinary citizens, the Sackett’s plight struck a chord with the U.S. Supreme Court.  On January 9, 2012, the Court heard the Sackett’s case.  Although the Court has not yet ruled, the Justices were sympathetic to the Sackett’s claim.  Justice Alito appeared to reflect the sentiments on the bench when he asked the government attorney: “[I]f you … related the facts of this case … to an ordinary homeowner, don’t you think most ordinary homeowners would say this kind of thing can’t happen in the United States.?”

But this kind of thing can and does happen in the United States.  The Corps and EPA issue hundreds of mandatory “compliance orders” every year without proof or hearing, depriving ordinary homeowners their fundamental right of redress.

To address this problem, Congress has held a number of hearings in the past year to hold the Corps and EPA accountable.  Now, Senator Rand Paul has proposed a bill entitled the Defense of Environment and Property Act of 2012 (S.2122) “to clarify the definition of navigable waters.”

The bill can be read here along with an analysis here.

Among other things, the bill seeks to:

1. Provide a predictable definition of “navigable waters” and federal authority;
2. Exclude ephemeral and intermittent streams from federal control;
3. Prevent the Corps and EPA from reinterpreting the definition of “navigable waters” without congressional approval;
4. Return control over local water and land use to the States;
5. Prohibit federal trespass onto private property; and,
6. Require compensation for loss of use and value of private property.

Given the Corps and EPA’s inability or unwillingness to acknowledge any limits to their authority over nonnavigable waters, a bill of this type was perhaps inevitable.  Even if Senator Paul’s bill is not the last word on the subject, it will certainly enliven the debate over the scope of federal authority and perhaps result in clearer regulatory standards that would benefit both the regulating agencies and the regulated public.

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