Are Dry Stream Beds Navigable Waters of the United States?

The House Subcommittee on the Environment held a hearing yesterday on what its chairman called “one of the biggest federal overreaches in modern history.”

The Waters of the United States rule, passed by administrative fiat in June 2015, gave the federal government jurisdiction over nearly every river, lake, creek, estuary, pond, swamp, prairie pothole, irrigation ditch, and intermittent rivulet in the U.S.

It’s a regulation that can force a rancher to spend $40,000 trying to get permission to grade a road through a dry wash that carries water only during occasional summer rainstorms—and then give up rather than pour more resources into the fight.

After the Environmental Protection Agency (EPA) issued the rule, 33 states and more than 70 private sector organizations immediately challenged it in the courts for being too broad. In October 2015, the U.S. Court of Appeals for the Sixth Circuit issued a nationwide stay on implementing the regulation.

The purpose of the subcommittee meeting was to hear testimony on the current status of federal water regulations, their impact at the state level and to examine options for improving them going forward.

Chairman Andy Biggs (R-Ariz.) said Wednesday, “Not only did the rule’s flimsy definitions and underlying science mean that the agency had the ability to regulate private land, but it also placed significant financial burdens on some of our country’s hardest workers.”

In her opening statement, subcommittee ranking member Suzanne Bonamici (D-Ore.) noted that the 1972 Clean Water Act was adopted because many states had failed to meet their responsibilties to keep their rivers, streams, lakes, and estauries clean, allowing them to become “dirty and polluted”; some waters, she noted, had even “caught on fire.”

She cited a January 2015 EPA study, Connectivity of Streams and Wetlands to Downstream Waters: “The scientific literature unequivocally demonstrates that streams, individually or cumulatively, exert a strong influence on the integrity of downstream waters. All tributary streams, including perennial, intermittent, and ephemeral streams, are physically, chemically, and biologically connected to downstream rivers via channels and associated alluvial deposits where water and other materials are concentrated, mixed, transformed, and transported.” In other words, we all (intermittently) live downstream.

The Clean Water Act instructs the EPA to “prepare or develop comprehensive programs for preventing, reducing, or eliminating the pollution of the navigable waters.” Central to the fight over federal jurisdiction is the definition of just what “navigable waters” are. Under the rules promulgated under the Obama administration, the EPA thinks it’s pretty much any water at all. Most people would interpret the phrase more narrowly.

In February, President Donald Trump issued an executive order instructing the EPA to “consider interpreting the term ‘navigable waters’…in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States.” Scalia’s opinion noted that before the Clean Water Act passed, the courts had “interpreted the phrase ‘navigable waters of the United States’ in the Act’s predecessor statutes to refer to interstate waters that are ‘navigable in fact’ or readily susceptible of being rendered so.” He then argued that “on its only plausible interpretation, the phrase ‘the waters of the United States’ includes only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams[,]…oceans, rivers, [and] lakes.'”

Just how far the feds reached under prior administrations was illustrated in testimony by James Childton Jr.—the Arizona rancher who wanted to grade that road. His environmental consultant warned him that this might require an Army Corps of Engineers permit, and eventually he abandoned the project due to mounting legal and other fees.

“The $40,000 I had spent was entirely the result of the vague and expansive requirements of EPA and the Corps of Engineers; not a penny went to a constructive or productive agricultural need,” Chilton testified. “It was all for a permit writing expert, consultants, an environmental assessment and engineering report, a survey, and attorney fees.”

The dry wash on Chilton’s property is located 270 miles away from the Colorado River, the nearest navigable body of water. After the Rapanos decision came out, Chilton decided to risk building a culvert over another dry wash without seeking a permit. Now he’s worried about possible criminal liability if the Obama-era rule stands.

At yesterday’s hearing, Pacific Legal Foundation senior attorney Reed Hopper offered a reasonable proposal on how to clarify and limit the jurisdiction of the federal government over the waters of the United States. He suggested that the term “waters of the United States” should include only:

1. Those waters that are navigable-in-fact and currently used or susceptible to use in interstate or foreign commerce. These waters include the territorial seas.

2. Permanent, standing or continuously flowing streams, rivers, and lakes directly connected to navigable-in-fact waters described in a.1. Continuously flowing means an uninterrupted flow except in extreme weather conditions such as drought. These waters do not include groundwater or channels through which waters flow intermittently or ephemerally, or channels that provide only periodic drainage, such as from rainfall.

3. Those wetlands that directly abut and are indistinguishable from the waters described in a.1. and a.2. Wetlands are those areas 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. Wetlands generally include swamps, marshes, and bogs. Wetlands are indistinguishable from the waters described in a.1. and a.2. when the wetlands and waters have merged so there is no clear demarcation between the two.

Basically, if what ordinary folks would identify as a creek or swamp flows into a river on which a boat will float, then the feds would have jurisdiction.

We all live downstream. But how much harm is caused when someone modifies an intermittent stream bank, fills in a small wetland, or digs a drainage ditch are questions better decided by state and local water quality authorities better suited for monitoring and regulating such activities.