Ken Paxton

Monday, August 11, 2014

Attorney General Abbott Opposes EPA Proposal to Regulate “Ditches”

Attorney General files formal objection to proposed federal regulations that will trample private property rights and dramatically expand EPA’s authority

AUSTIN—Texas Attorney General Greg Abbott today released the following statement on proposed federal regulations that unlawfully claim the EPA’s Clean Water Act authority extends to stock tanks, small ponds and even dry ditches:

“The EPA has no authority to regulate dry ditches and stock tanks on private property—but that is exactly what the Obama Administration is trying to achieve under new rules proposed by the EPA and the Corps of Engineers. First, the EPA has attempted to regulate ‘emissions’ from schools, churches and apartment buildings, and now they are claiming they can micromanage dry ditches on private property. So today we are beginning the first step in the process of challenging these proposed regulations, which are unlawful and exceed the EPA’s authority to regulate navigable waters.”

Texas Attorney General Abbott's letter to the Environmental Protection Agency

Under the Clean Water Act, the EPA only has authority to regulate “navigable waters.” Under new regulations proposed by the EPA and the Army Corps of Engineers, the Obama Administration is proposing to dramatically expand the EPA’s regulatory authority by claiming that “navigable waters” includes solitary ponds on private property and even what the EPA’s own proposal refers to as “ditches.” Today Attorney General Abbott submitted formal comments to the EPA and the Corps of Engineers opposing the proposed regulations and explaining that the EPA is attempting to regulate private property that clearly falls outside the agency’s jurisdiction.

The following are excerpts from today’s letter:

“[T]he proposed rule…would erode private property rights and have devastating effects on the landowners of Texas.”

“Under this proposed definition, it is difficult to envision any lands—especially those that lie near the coast—that are not potentially within the ambit of federal jurisdiction. This broad and overreaching definition would impose virtually no limit on federal jurisdiction…”

“Perhaps more troubling…is the federal agencies’ explicit inclusion of ‘ditches’ as ‘waters of the United States.’ Under this untenable and legally baseless definition, any landowner who has a ditch on his or her private property is at risk of having the federal government exert regulation over that ditch and impose burdensome and expensive federal regulations over dry land that does not remotely resemble any common-sense understanding of ‘waters of the United States.’ At a bare minimum, this will require farmers to pay fees for environmental assessments—just to determine whether their ditch is a ‘water of the United States.’ These landowners will then be required to obtain permits just to till the soil near gullies, ditches or dry streambeds where water only flows when it rains. It seems inconceivable that this is what Congress intended when it penned the term ‘navigable waters.’”

“The federal agencies’ expansive definition also runs counter to recent guidance provided by the United States Supreme Court to the EPA when defining the limits of its authority. In Utility Air Reg. Group v. EPA, the Supreme Court cautioned that ‘[w] hen an agency claims to discover in a long-extant statute an unheralded power to regulate a significant portion of the American economy, we typically greet its announcement with a measure of skepticism.’”

“The Clean Water Act was enacted pursuant to Congress’s authority to regulate interstate commerce under Article I, section 8 of the Constitution. As a result, regulatory agencies violate the Constitution when their enforcement of the Act extends beyond the regulation of interstate commerce… In other words, there are likely waters—not to mention dry ditches—that the proposed rulemaking purports to subject to Clean Water Act jurisdiction, but that, under a proper commerce clause analysis, would not be subject to federal authority. Regulating these waters falls outside the scope of Congress’s—and therefore federal agencies’—constitutional authority.”