The debate over the EPA and US Army Corps of Engineers to redefine the scope of waters protected under the Clean Water Act is heating up.
Two Supreme Court decisions, Solid Waste Authority of Northern Cook County vs. US Army Corps of Engineers in 2001 and Rapanos v. United States in 2006 addressed the EPA’s jurisdiction under the Clean Water Act. The first decision overturned an EPA rule that governed isolated waters “which are or would be used as habitat by. . .migratory birds that cross state lines.” The second decision was a bit more vague, as 4 conservative Justices wanted a more restrictive interpretation of the term “navigable waters” under the Clean Water Act.
With this new takeover, the EPA claims it’s only clarifying existing regulations with the new rule, but that is a lie. The Waters of the U.S. rule, according to the U.S. Chamber of Commerce and the American Farm Bureau, would open a Pandora’s Box as the EPA’s reach under the Clean Water Act WOULD BE EXPANDED to any land where flowing water leaves a mark, even if that water isn’t present most of the year. The EPA calls these features “ephemeral streams,” “wetlands” and “seasonal ponds” that don’t have to be present year-round or even natural to be regulated. The new rule would also cover man-made bodies like ditches, canals and ponds that drain into waters covered under the new rule.
William Kovacs, the senior vice president of environment, technology and regulatory affairs for the U.S. Chamber of Commerce, said this new EPA extension would represent a massive regulatory overreach and have a chilling effect on entrepreneurs. It would expand the EPA’s reach from 3.5 million river and stream miles to 8.1 million. “This rule would mean fewer entrepreneurs and fewer construction projects…It’s a power grab by the agency. It’s a classic case of mission creep…This doesn’t pass the rationality test… If you’re going to develop a piece of property, you’re going to require a solid hydrologic survey to ensure that you don’t have a ditch, a pond or even a low area that has water during different times of the year that they have a chance to regulate.”
In testimony in June before the House Subcommittee on Water Resources and Environment, American Farm Bureau Federation president Bob Stallman said the rule will present a new and costly legal hurdle for farmers and ranchers. “EPA is deliberately misleading the regulated community about the impacts on land use. If more people knew how the EPA could use the proposed rule to require permits for common activities on dry land, or penalize landowners for not getting them, they would be outraged.”
“As a practical matter, the proposed rule will mean increased enforcement against farmers, greater expenses for permitting, potential delays in managing their operations, and the unquestioned exposure of legal liability attendant with lawsuits from activists.”
More than 260 lawmakers, spanning both chambers and parties, have come out against the EPA’s action. A group of 231 members of the House recently sent a letter to the EPA and the Army Corps asking them to withdraw the regulation. “Although your agencies have maintained that the rule is narrow and clarifies CWA jurisdiction, it in face aggressively expands federal authority under the CWA while bypassing Congress and creating unnecessary ambiguity,” the lawmakers wrote.
In June of this year 30 Republican Senators introduced legislation to stop the finalization of the new rule. According to Senator John Barrasso of Wyoming, a cosponsor, “their unprecedented federal water grab is in the form of a rule that will hurt family farms, ranchers, and small businesses by imposing outrageous permitting fees and compliance costs.” If the rule goes forward, it will restrict local land and water use decisions made by the states and local governments as well as requiring additional permitting for farming and ranching activities.
But unless voters get Dirty Harry out of the driver’s seat, the legislation has no chance of ever becoming law and Gina McCarthy knows it. Anyway, much like her boss, something as trivial as a federal law is only a minor hiccup. McCarthy has, however, agreed to extend the comment period for a second time to November 14.
Once again the EPA is not attempting to protect Americans – much like all of their restrictive regulations, they are fulfilling the United Nations’s Agenda 21.
