Senate EPW Hearing on Erosion of Exemptions and Expansion of Federal Control – Implementation of the Definition of Waters of the United States

In his opening statement, Sen. Sullivan (R-AK) discussed what has been happening in Alaska.  Already a huge amount of Alaska’s waters falls under federal jurisdiction.  Given the extent of Alaska’s coastline, millions of lakes, and more than 43 percent of the state’s surface area is wetlands, which accounts for 65% of all the wetlands in the U.S.

Now the EPA and the Army Corps of Engineers (the Corps) is trying to expand their reach in terms of what constitutes a wetland by claiming that land with permafrost is also within their jurisdiction, although there is no statutory and regulatory authority to grant them that jurisdiction.

Permafrost is found beneath 80 percent of Alaska.  Currently, permafrost does not meet the definition of a wetland, to change the definition to include wetlands, the Army Corps of Engineers (the Corps) would have to change the definition in their 1987 manual following comment making and revisions, which they have not done, but they have expanded the definition anyways

For example, the Corps is now telling a family in North Pole, Alaska that they cannot build on their land because it is frozen soil.

He stated that the witnesses were here to testify of other similar instances of federal overreach in their states.

Not only does EPA and the Corps this frozen ground in Alaska is wetlands, but they are exercising authority over even more features such as previously converted crop land, stock ponds, water and soil far beneath the surface, puddles and dirt roads, tire ruts, and depression.  And, on activities on adjacent lands such as plowing and changing crops.

Federal agencies cannot expand what is under their jurisdiction on their own.  Often we are not conducting oversight for this

The EPA and the Corps are bypassing Congress and ducking Supreme Court rulings to get to t heri jurisdictional conclusions.

Sen. Whitehouse (D-RI) for over 40 years, the Clean Water Act has strengthened the health of our waterways.  Rivers and wetlands that were once unusable due to pollution are once again swimmable and fishable.  Just last week, the Providence Journal ran a column that discussed the change in the

If you are an upstream state, you may say that the rulings are too strong, but downstream states may have a different view.

As a downstream state, Rhode Island understands the importance of headwaters and the influence of upstream pollution.

Strong enforcement of the Clean Water Act is the best defense against upstream pollution.

The jurisdictional confusion left in the wake of the Supreme Court’s decisions in this area weaken the ethics of the CWA, and created uncertainty for both regulators and the regulated.  This is why in 2014 the EPA and Corps promulgated the new water rule.  The sixth circuit court of appeals has temporarily stayed the rule nationwide, forcing the EPA and the Corps to rely on the guidance the developed before the Supreme Court decisions.  The reality is that the CWA is an important regulation.

The rule actually reduces the amount of waters protected under the CWA, and will only amount to only 3-5 percent more waters covered than before the rule.

Sen. Sullivan added that related to broad support, there are now 34 states that have sued to stop the CWA’s authority.

Corps told Wilkinson’s company that they can regulate land even if there is no surface connection to water

They have used shallow subsurface connection to justify the basis of jurisdiction.  At bottom, it an attempt to regulate ground water and

Adjacency jurisdiction.  In there is a shallow subsurface connection, then the corps will consider your property to be adjacent to whatever the nearest water body may be and wherever that shallow subsurface flow ends up and therefore subject to the CWA.

Damien Schiff, Principal Attorney, Pacific legal Foundation testified on the controversies over the definition of waters of the United States, and the resulting regulatory authorities over those lands.  Over the past decade, these controversies, following Rapanos vs. United States, the U.S. Supreme Court’s most recent decision interpreting the Act’s scope.  His testimony focused on a few post-Rapanos decisions and several ongoing cases that demonstrate the extravagance with which the EPA and the Corps view their authority.

The first case he discussed was whether permafrost is among the waters of the U.S.

The Schok family runs a small business in North Pole, Alaska specializing in pipe fabrication, insulation, and related services for companies developing the North Slope oil fields.  It has outgrown its current locations and wants to expand to a neighboring location it has acquired, but the Corps has asserted jurisdiction over the property’s 200 acres of permafrost.

For several decades the Corps has interpreted the CWA to reach some wetlands, defined as “those areas that are inundated or saturated by surface or groundwater 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.”

Given the difficulty of determining whether a site contains wetlands, the Corps in 1987 published a manual to assist in making wetland delineations.  Shortly thereafter, the Corps and other federal agencies published another manual that dramatically expanded the definition of wetlands which ensued Congress to rein in the Corps.

In the Energy and Water Development Act of 1993, Congress mandated that the agency use the 1987 manual exclusively for wetland delineations until a final wetland delineation manual is adopted.  But, since then the Corps has not followed Congress’ direction.  It has issued regional supplements to the 1987 manual that provide region-specific criteria for wetland delineation, including the 2007 Alaska supplement to the manual, which uses a relaxed standard to determine the growing season.

The Alaska supplement states that the growing season is determined with reference to vegetation green-up growth, and maintenance as an indicator of biological activity occurring both above and below ground.  In contrast, the 1987 manual defines the growing season to be the portion of the year when soil temperatures at 19.7 inches below the soil surface are higher than biologic zero (5.0°C).

“The critical reason for the Alaska supplement’s divergence from the 1987 supplement is to enable federal regulation of permafrost.  In the 1987 manual, permafrost would never qualify as wetland because permafrost never reaches the required above-freezing soil temperature.”

The Schock family filed suit in federal district court in the case Tin Cup, LLC v. U.S. Army Corps of Engineers, they argued that the Corps does not have jurisdiction over their property’s permafrost because it does not qualify as wetland under the 1897 manual.

The family’s dispute with the Corps is not just academic.  Whether permafrost can be regulated under the Clean Water Act is an issue of keen importance to all Alaskans, as it will affect the extent to which the Corps and EPA can use the Act as a federal land-use ordinance.

It is also scientifically questionable: the EPA and the Corps seek to regulate wetlands in part because they can filter pollutants, regulate storm flows, and provide other water quality benefits, but permafrost can do little of this because it is frozen and functions largely like dry land.

“To preserve individual liberty, it is essential that the government play by the rules consistently.  Allowing federal agencies to make regional exceptions to their regulations raises a dangerous, freedom-threatening precedent”

Schiff also cited other examples across the U.S., the details of which can be found in his written testimony:

  • ”Are normal farming practices exempt from the CWA?”
  • “Improving the Environment, but Incurring the Wrath of EPA”
  • “A Dry Arroyo is among the “Water of the United States?”
  • “An Intent Component to the Prior Converted Croplands Exception?”
  • “A modest Home-Building Project Threatens the Environment?”

In his concluding remark, Schiff said that these cases reveal these agencies’ too frequent practices of allowing a misguided zeal for the environment to override and commonsense enforcement principles, as well as statutory and regulatory backdrops designed to prevent agency aggression.

Don Parrish, Senior Director, Regulatory Relations, American Farm Bureau Federation testified about the problems his clients are facing with agency interpretations of farming exemptions and how the final CWA rule, WOTUS, will exacerbate a serious challenge facing farmers.

Valerie Wilkinson, VP and CFO, the ESG Companies, testified on her organization’s quest to obtain a federal wetland permit for their building project, which has been going on for more than 25 years because at every steps of the process, the rules have changed and new requirements have been added.

Scott Kovarovices, Executive Director, Izaak Walton League of America, testified on how the U.S. Supreme Court decisions SWANCC in 2001 and Rapanos in 2006 and subsequent agency guidance has resulted in many streams and wetlands being at risk of being polluted or drained and filled.

Sen. Sullivan then noted that in a hearing last year he asked EPA Administrator McCarthy if permafrost is jurisdictional under WOTUS, and if so, what is the significant nexus between permafrost and navigable water or territorial sea.  Her response was that permafrost specifically refers the frozen soil, and while permafrost may underlay wetlands or open waters, it is not in itself a water in the U.S. subject to the rule and the jurisdiction of the rule.  Sen. Sullivan asked Schiff if the Corps in Alaska agree, in particular related to the case he is working on.

Schiff said that no, the position of the Corps is that permafrost can qualify not just as solid land, but as a water of the U.S. as well.

Sen. Whitehouse directed a comment at Schiff as well.  To clarify his position here is that just because something is permafrost, it cannot be regulated by the CWA, not matter what other conditions exhibit.  Your point is that just because it is permafrost, that shouldn’t be enough to trigger CWA regulation.  Schiff agreed.

Sen. Whitehouse then made a concluding point that people who are downstream very often experience significant effects when run off and hits the land they protect.  Secondly, there is a difference we should reflect between bad bureaucracy that creates a problem by not being helpful and responsive to individual applicants compared to an overall bad statue.

Wilkinson noted that in this experience, every time there has been an attempt to expand their jurisdictions, whether approved or not, there has been an increase in on the ground regulation.  Also makes it extremely difficult for a small business to plan for the future when the regulations are constantly hanging

Chairman Inhofe (R-OK) noted that this is very typical when a federal agency does not get what they attempt to achieve through legislation.  This hearing illustrates what the Corps and EPA attempting to use regulation to do what they failed to do through legislation six years ago.  It is a regulatory taking, and the Supreme Court has made clear that this includes using environmental regulation to limit the uses of private property to such a degree that the property owners are deprived of any economically reasonable use of value of their property.