Any time a government agency seeks to advance regulation that can affect a property owner’s rights, controversy is inevitable. So it is for the Environmental Protection Agency’s (EPA) recently published “Clean Water Rule: Definition of ‘Waters of the United States.’” Roughly 14 months after proposing the rule and assuring the public the purpose of the rule was to bring clarity to the limit of the agency’s jurisdictional authority, the EPA published the rule only to find the controversy has not subsided.
No one in the regulated community should question the EPA’s authority to enforce the Clean Water Act (CWA). When drafting the CWA, Congress assigned the responsibility of enforcing the federal law to the agency. Likewise, Congress authorized the EPA to develop regulations to assist the agency with achieving the act’s objective to “restore and maintain the chemical, physical, and biological integrity of the nation’s waters.” The agency does this by identifying instances, in its opinion, where federal law is not being followed adequately. Finding a solution to correct these perceived shortcomings sometimes leads an agency to presume Congress’ intention regarding the extent of the agency’s jurisdictional authority. While this is legitimate, it often adds to the controversy.