Time and again the agriculture sector is witness the executive branch “going around” Congress in order to advance an intrusive regulatory agenda that an agency cannot achieve via the legislative process. Not only are such maneuvers a stark reminder of the regulatory gauntlet that must be navigated by the agricultural and business sectors, but they are clear examples of a government that chooses to regulate rather than legislate.
The most recent example of regulatory overreach run amuck is the attempt by the Environmental Protection Agency – via regulations and guidance – to expand its authority in relation to the Clean Water Act beyond the limits approved by Congress.
Although the Clean Water Act clearly limits federal jurisdiction to “navigable” waters of the United States – limits that have twice been reaffirmed by the United States Supreme Court – the Environmental Protection Agency continues to have its sights set on regulatory control over virtually all waters.
In the event they are successful, the Agency would have the authority to regulate any or all waters found within a state – regardless of traditional state prerogatives relating to land use planning and economic growth or how unconnected those waters are to the federal interest or interstate commerce.
The Clean Water Act, enacted in 1972, limits federal jurisdiction to “navigable” waters of the United States. The U.S. Supreme Court, in 2001 and 2007, reaffirmed those limits. The Environmental Protection Agency, through regulations, guidance and other means, is seeking to expand its authority beyond the limits approved by Congress.
Over the past two decades Supreme Court decisions have reaffirmed that “navigable waters” under the CWA does not extend to all waters. Legislation to overturn those decisions – despite aggressive lobbying campaigns by environmental groups – has failed to reach a vote on the floor of either the House or the Senate.
Congress should not permit the agency to move forward with expanding their regulatory overreach. Expanding jurisdiction of the federal government to intrastate waters, including groundwater, ditches, culverts, pipes, desert washes, sheet flow, erosional features, farm and stock ponds, and prior converted cropland was not the intent of the framers of the 1972 legislation.
Efforts to change the meaning of “navigable waters” – either via legislation or regulation – would fundamentally change the Clean Water Act, legislative authority that should remain limited to navigable streams and flowing waterways that have continuous flow.
The key to holding government agencies such as the Environmental Protection Agency accountable is for Congress to exercise the fundamental role of oversight of the executive branch. Unfortunately, this is a role members of congress have not fully embraced and an authority that has not been fully utilized.
Dave Ladd served as a Policy Advisor to former United States Senator Rod Grams. His company, RDL & Associates, assists clients in achieving their legislative and policy objectives via strategic communications, message development and navigation of complex matters of public policy.
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