The Environmental Protection Agency along with the Army Corps of Engineers are once again trying to push a massive expansion of regulatory authority under the dubious claim of “navigable waters” under the Clean Water Act.
It’s not the first time the EPA has set its sights on nearly every single square inch of American soil under the Clean Water Act. The Supreme Court has turned them back twice before but they have come back for a third bite at the apple.
In April 2014, the Environmental Protection Agency and the Army Corps of Engineers published a proposed rule—“Definition of ‘Waters of the United States’ Under the Clean Water Act”—that defines what waters are covered under the Clean Water Act (CWA). This rule, often referred to as the “Waters of the United States” (WOTUS) rule, could cover almost any type of water, giving the two agencies far greater power than authorized under the CWA. The proposed rule is complicated and vague, with little clarity coming from the agencies. There are four key points that should be known about the proposed rule: (1) it is extremely broad; (2) it is an attack on property rights; (3) it exceeds the broadest interpretation of Supreme Court precedent on CWA jurisdiction; and (4) it was developed through a flawed process. Unless Congress acts, this proposed power grab could soon become a reality—the two agencies recently sent their final rule to the Office of Management and Budget for its approval. Congress should require that the agencies withdraw the rule, and then Congress must define what is meant by “waters of the United States.”
First of all, the EPA is back to its old tricks of making a purposefully vague and confusing rule and then expanding its definition all out of proportion.
The proposed rule would assert jurisdiction over numerous types of waters, including “tributaries,” “adjacent waters,” and “other waters.” The definition for “tributaries” covers any water with a bed, banks, and ordinary high water mark that contributes flow, either directly or through another water, to a traditional navigable water, interstate water, territorial sea, or impoundment. This definition is even broader than it sounds. As explained by the American Farm Bureau Foundation:
The agencies use the words “bed” and “bank” and “ordinary high water mark,” which sound like parts of a river or stream. In reality, though, the agencies’ explanation makes clear that those words just mean some kind of channel (land with higher elevation on each side of land with a lower elevation) plus any physical marks left by flowing water.The “tributaries” definition would include streams with ephemeral flow—in other words, a stream that only exists after heavy precipitation. A depression in the land could be a tributary if it sometimes has water flowing in it. For all practical purposes, the agency could be regulating land, not water. According to the agencies, a tributary could be “small” and a “substantial distance” from a jurisdictional water. As defined, a tributary would cover almost any ditch, including man-made ditches.
The expansive definition of “naviagable waters” is intentional on the part of the EPA because it gives them broad new powers over private property. One way they currently exercise this power is through their endless permitting process.
The proposed rule could drastically infringe on property rights. Under the CWA, the federal government has jurisdiction over “navigable waters,” which the CWA further defines as “the waters of the United States, including the territorial seas.” The proposed rule defines what is meant by “waters of the United States,” which is critical since that helps clarify the scope of the CWA. If a water is covered under the law, property owners could be required to secure costly and time-consuming permits to take actions that impact these waters.
In Rapanos v. United States, Justice Antonin Scalia cited a study highlighting the following costs and delays for one of the major types of permits (Section 404 dredge and fill permits): “The average applicant for an individual permit spends 788 days and $271,596 in completing the process, and the average applicant for a nationwide permit spends 313 days and $28,915—not counting costs of mitigation or design changes.”
In other words, it’s your property if you pay us a fee and take up hours of our time.
common activities, from farming to home building, could require a permit. Farmers, local governments, and others who would be affected do not “want to pollute or destroy a jurisdictional water,” but instead want to use their property for ordinary everyday uses. Many people simply want to use their property to make an honest living. A 2012 Supreme Court case, Sackett v. EPA, highlights an egregious instance of regulatory enforcement whereby the EPA sought to impose fines of $75,000 a day on a couple for placing gravel on virtually dry land to build a home in a built-out subdivision.
The idea that the EPA could go to anyone’s property when it rains and call it a wetland then subjecting them to interminable permitting process is not a scaremongering story but as you can see an actual fact. Congress can rein in the EPA by requiring the rule be re-written or by passing new legislation to clearly define “navigable waters” in words even bureaucrats can understand.