Everybody's a Potential Criminal in the Eyes of the EPA

The Clean Water Act gives way to another round of mission creep.

A half-century ago, John Pozsgai emigrated to America from Hungary. Twenty-five years later, he bought a hunk of land in Morrisville, Pennsylvania, that had been used as an illegal dumping ground for used tires and old car parts. Pozsgai wanted to build a garage on the land. So he hauled away the old tires—7,000 of them—and the rusty scrap metal, and hauled in clean fill dirt and topsoil.

No good deed goes unpunished, and Pozsgai's wasn't. Sometimes when it rained, the tires caused water to build up on the property. In the eyes of the federal government, that made it a wetland. Federal agents used surveillance cameras to record Pozsgai's cleanup activity and had him arrested for "discharging pollutants"—i.e., the fill dirt and topsoil—"into the waters of the United States." Convicted, he got a three-year prison sentence and a $200,000 fine.

If federal regulators have their way, America could see a lot more John Pozsgais in its future.

Pozsgai's ordeal was brought about by governmental mission creep. The Clean Water Act of 1972 protected the "navigable waters of the United States and their tributaries." But a series of court cases and bureaucratic decrees expanded the scope of the law to cover non-navigable waters, and even areas of dry land that become inundated after heavy rains or that support "vegetation typically adapted for life in saturated-soil conditions," such poison ivy, maple trees, and other "facultative" plants.

Now, under the Obama administration, the EPA and the Army Corps of Engineers are pushing the envelope again. They have rolled out a new Guidance on Identifying Waters Protected by the Clean Water Act that would apply wetlands regulation to ditches, gullies, and similar places where standing water can accumulate.

Rep. John Mica, chairman of the House Transportation and Infrastructure Committee, says the guidance "seeks to give the federal government control over virtually every body of water in the United States, no matter how small." What's more, the EPA and the Corps are trying to impose it by bureaucratic fiat, circumventing the normal procedures required by the Administrative Procedure Act.

That subterfuge has raised hackles on Capitol Hill, where a bipartisan group of 72 House members has introduced legislation pushing back against the EPA and Corps power grab. The bill, designed to prevent the executive branch from legislating through regulation, cleared Mica's committee a few days ago.

You don't have to think expanding federal authority is a bad idea to think there is a right way and a wrong way to go about it. During the Bush administration, Barack Obama spoke eloquently about how "the President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation." (That was before he unilateraly authorized a military attack in Libya.) Likewise, federal agencies should not be able to redefine their own missions at whim.

The current question raises broader issues as well. For example, in March the Supreme Court unanimously ruled that the EPA could not issue administrative orders without judicial review. In that case, Michael and Chantell Sackett found themselves in (pardon the term) hot water because – shades of John Pozsgai – they had leveled two-thirds of an acre in the middle of a development tract with rock and fill dirt, thereby allegedly filling wetlands illegally.

The EPA slapped them with an administrative order to remove the fill dirt or face sanctions. When they challenged the order, the agency argued that it could do so with no further review – essentially acting as judge, jury, and executioner all by itself. Even The Washington Post – no hotbed of right-wing deregulatory fever – said the agency should have "asked itself years ago whether it really needed to hassle a couple seeking to build a home in an existing subdivision, helping to justify every negative caricature of the EPA that Republican presidential hopefuls peddled during the primary race."

That editorial also noted the strident remarks by now ex-EPA official Al Armendiaz, who gained notoriety earlier this year when he said the agency, like the ancient Romans, should strike fear into the hearts of its subjects by crucifying victims at random.

Those remarks expose why the new wetlands guidance is problematic not merely for procedural reasons but for substantive ones as well. A crucial feature of the law is predictability: In order not to break the rules, you have to know what the rules allow and what they do not. But a regulatory system that applies to nearly any ditch or puddle cannot be enforced except in the most arbitrary fashion. So farmers, developers, and others simply would have no idea whether their seemingly innocuous activity could bring the federal hammer down out of a clear blue sky. Thus they would live in constant fear of becoming the next apparently random victim.

John Pozsgai, who grew up under the hammer and sickle of Soviet Communism, would understand perfectly.