Feds Claim Power Over Every Mud Puddle Under 'Migratory Molecule' Theory

Nearly 30 years ago, a Michigan landowner named John Rapanos got in trouble for moving some dirt around on his property without permission from the government. Under wetland and other laws, federal agencies have authority over activities that affect navigable waterways, none of which passed through or near the Rapanos property.

Nevertheless, the U.S. Army Corps of Engineers and U.S. Environmental Protection Agency went after Rapanos by redefining “navigable” so broadly that it potentially gave them authority over drainage ditches and farmland runoff. Russ Harding, who headed the Michigan Department of Environmental Quality under Gov. John Engler and later worked on related issues for Michigan’s Mackinac Center for Public Policy, dubbed this interpretation the “Migratory Molecule” theory.

Rapanos sued the EPA after incurring millions of dollars in fines for filling in a so-called wetland without a permit. Eventually, the U.S. Supreme Court ruled that the agency had overreached, sending the case back to a lower court for a do-over.

A new report released by the U.S. Senate Committee on Environment and Public Works on Sept. 20 says that the EPA and the Army Corps continue to assert broad jurisdiction despite two federal courts determining that doing so exceeds their authority.

In 2015, the EPA announced a new rule called the “Waters of the United States” that embodied the “stray molecule” theory all over again.

The agency published the final version of the water rule in June 2015 to become effective on Aug. 28 of that year. But a federal district judge in North Dakota slapped an injunction on the rule on Aug. 27. Likewise, the 6th Circuit Court of Appeals issued a stay on the rule in October 2015 because of concerns the rule drastically exceeded the EPA’s authority.

“Recently the courts have stayed or rejected several major EPA regulations, including the Clean Power Plan, the Mercury and Air Toxics Rule and the Waters of the United States rule,” said Jason Hayes, environmental policy director for the Mackinac Center. “The courts’ rulings indicate a growing degree of skepticism over the EPA’s regulatory agenda. This just-published Senate report lends serious credibility to the court’s apparent concerns.”

The Rapanos case raised the issue of what could legally be defined as a “significant nexus” to navigable water, which the EPA later said included stock ponds, furrows created by plowing and disking, and even tire ruts. The Senate report argues that the rule will not clarify the scope of the EPA’s jurisdiction under the Clean Water Act. Instead, the committee said, it will simply codify the EPA's more extreme assertions that most water and wetlands have a “significant nexus” to navigable water and are, therefore, under its jurisdiction.

“So the EPA and Army Corps of Engineers now claim that a farmer plowing a field is creating rows of miniature mountain ranges? Reasonable people are forced to question if this is a joke. Sadly, it isn’t,” said Hayes. “If a farmer switches crops in a field, if their tractor leaves a tire rut, if a puddle develops in a field during a wet year, or if they have a road or drainage ditch on their property, under the EPA's rule they will now have to apply for a federal permit to continue farming their land. How can farmers be expected to survive this sort of extreme regulatory pressure?”

Hayes continued: “Farmers live on the land, literally producing the nation's daily bread. But, this Senate report demonstrates how the EPA and Army Corps of Engineers are treating farming as mortal dangers to the nation’s water resources.”

H. Sterling Burnett, a research fellow at The Heartland Institute and managing editor of that organization’s Environment & Climate News, notes that case studies in the Senate report document the ways that the EPA and Corps openly flaunt court orders to cease enforcement efforts. “The water rule is a greater overreach on the part of the EPA and far more comprehensive than any of its previous claims of authority over wetlands. The Supreme Court has repeatedly struck down previous versions of the EPA’s wetlands regulations as unconstitutionally exceeding the authority granted it under the Clean Water Act,” Burnett said.

“Following these precedents, we should expect the Supreme Court to eventually overturn this rule,” he continued. “However, with the loss of Justice Antonin Scalia, nothing is certain. Even if the rule is eventually overturned, it will be up to the next administration’s EPA to write new wetlands regulations. If the past is any guide, regardless the next president, EPA lifers will try not to cede any power, and will once again write rules that give the agency the broadest authority possible over water, even if it is non-navigable, temporary, small and not connected to any navigable water as a way of implementing national zoning.”

To settle this matter once and for all, said Burnett, “Congress must act to reform the Clean Water Act to make clear EPA’s charge to protect water quality and navigability only extends to interstate bodies of navigable waters. Under our federalist system of government, stock ponds, drainage ditches, soggy farm fields and even navigable natural and man-made lakes, rivers and streams, should not fall under the EPA’s authority, unless they cross state borders,” he said.

“We all get that the EPA and Army Corps are tasked with protecting water resources,” said Hayes. “But the water rule goes way beyond what is needed to do that job. This sort of regulatory pressure on our nation’s farmers smacks more of a political crusade than reasonable regulation. We shouldn’t see this sort of thing from federal agencies.”