My Initial Response to the EPA Draft Rule Defining “Waters of the US” Under the Clean Water Act

I’m glad I had my boots on when I read through this draft rule.  I have never seen a proposed rule include more self-promoting language, and puffery that is flat out wrong.  The proposed rule “clarifies,” “benefits,” and “increases efficiency.”  This area of the law is currently in a “confused and complex” state due to that nasty, mean ol’ US Supreme Court.  We The People have been asking for clarification for about a decade, and now the EPA has saved us!  The EPA assures us that the draft rule “does not protect any new types of waters that have not historically been covered under the Clean Water Act.”  Bull.

The question is simply this: when do you need a permit from the US Army Corps of Engineers or EPA before doing something that disturbs the surface of land?  Many different activities “disturb” land.  If the disturbance affects “waters of the US”, you need a permit.  Now throw in a brand new rule, with brand new terminology and concepts you must use accurately, to figure out the answer.

Oh, and if you get it wrong, or don’t comply for any reason, regardless of your intent, you face a penalty that requires you to: (1) undo whatever disturbance you did, perfectly restoring the land’s pre-disturbed condition, at your cost; and (2) pay an administrative penalty of up to $75,000 per day, from the day you first disturbed the land until the day you restore the land’s pre-disturbance condition.  You can’t just stop what you’re doing, get a permit, pay a fine, and get back to it.  A short thirty day violation would run you a cool $2,250,000 in penalties alone.  And you get to battle the EPA/US Dept. of Justice with all their resources.

So how do you avoid the uncertainty?  Ask the EPA for its opinion before you turn a speck of soil.  Right.  That’s helpful.  OK, then ask your friendly local environmental activist groups for their opinion, because they would be the most likely to report you to the EPA if you proceeded and they wanted to stop you for whatever reason.  May as well save yourself some time and just go ahead and apply for the permit every single time.  You are in that witching geographic location which exists between a rock and a hard place.

This draft rule is like saving you from the confusion and complexity of deciding how to treat a hangnail, by cutting off your arm.  Albeit efficiently, with a machete.  Forget about whether a “wetland” adjacent to open, navigable water is fairly considered part of a “water of the US.”  The EPA wants to save us the trouble of that question by just taking over land that can hold water, land that held water in the past or may hold it in the future, and even land that is dry as a desert most of the time.

The question posed by the Clean Water Act (per the US Supreme Court in 1985) is “where does open water end and land begin?”  The Court had no problem understanding that between open waters and dry land may lie shallows, marshes, mudflats, swamps, and bogs.  Areas that are not wholly aquatic but nevertheless fall far short of being dry land.  Where on this continuum to find the limit of “waters”?

OK, I can see a legitimacy to that question.  But this new draft rule specifically includes open waters, the adjacent shallows, marshes, mudflats, swamps, and bogs, and then magically jumps across dry land to various kinds of water molecules, and the potential for water molecules, on land that is not adjacent to the open water.  On land that only holds water briefly after a large rain.  On land it would ever occur to most of us to consider whether it may be protected.  On land that no one but a properly trained professional (e.g. hydrologist) would be able to identify.

For rules to work, there must be some sort of intuitiveness to them.  We intuitively know it’s wrong to murder another human being separate from our criminal law.  This is called the conscience of a reasonable person, and it produces moral acts.  The law must be backed by morality in this sense to be effective.  This draft EPA rule is not intuitive, it is not obvious.  It has no moral support.  For these reasons, if adopted it will not produce the desired results.  It will only produce more fines and fees on those unlucky enough to get caught.

Members of the regulated community have the opportunity to file objections to this new rule. If you want to see this rule changed before its final, adopted form, I strongly recommend that you file your objections and comments in writing before the comment period closes, which should be around June 30, 2014. If you would like professional assistance with your comments, please contact me at mark@texasenvironmentallaw.com.

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