EPA ‘Guidance’ on Wetlands Defies Congress and the U.S. Supreme Court

Environmental law and policy have become the sole purview of the U.S. Environmental Protection Agency — Congress no longer has any say. Congress decided not to pass a law that would cap CO2 emissions, prompting the EPA, under the direction of the Obama administration, to limit CO2 emissions through numerous administrative rulemakings. Congress has just become an annoyance to the activist agency. Not content with determining the nation’s energy policy, the EPA is now in the process of asserting its jurisdiction over property rights by proposing wetland guidance documents that provide it with virtually unlimited authority.

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The Clean Water Act gives the EPA jurisdiction over wetlands adjacent to navigable waters. The Army Corps of Engineers and the EPA over the years has increasingly interpreted the Clean Water Act to give them jurisdiction over virtually any wetland in the nation. The U.S. Supreme Court intervened by limiting federal jurisdiction on wetlands in two cases: Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers and Rapanos v. United States. In the Cook County case the Court disagreed with the innovative contention of the federal government that it could claim jurisdiction on isolated wetlands (potholes) using the rational that because waterfowl land in those areas they are subject to the interstate commerce clause. In the Rapanos case the federal government claimed jurisdiction on wetlands many miles from navigable water, asserting a theoretical hydraulic connection. In a divided Supreme Court decision Justice Kennedy held sway with the requirement that the government must show a significant nexus to navigable water.

Environmental groups unhappy with any decision that limits federal jurisdiction appealed to friendly members of Congress to pass legislation giving the federal government broad jurisdiction over wetlands. The legislation failed to gain enough support to pass, however, leading to the current administrative guidance document being considered by the EPA.

The proposed guidance document is rife with major problems and is a grave threat to property rights. It is so vague that it provides the EPA and the Corps with almost unlimited authority contrary to the expressed will of Congress. Anyone wanting to develop land in the nation would be subjected to the discretion of bureaucratic interpretation of the wetland guidance.

Our form of government has worked largely because of a balance of power between the branches of government and the resulting checks and balances. The recent actions of the EPA threaten to undermine that system of government, placing the agency as a virtual dictator of environmental policy. Congress should act swiftly and decisively to stop the EPA’s power grab.


Russ Harding is senior environmental policy analyst at the Mackinac Center for Public Policy, a research and educational institute headquartered in Midland, Mich. Permission to reprint in whole or in part is hereby granted, provided that the author and the Center are properly cited.