On May 27 the EPA, along with the U.S. Army Corps of Engineers released their final rule that defines a water of the United States under the Clean Water Act. The “Waters of the U.S.” (WOTUS) rule specifies that the EPA’s jurisdiction is over public waters, streams, and wetlands; yet under the new rule, the EPA’s influence and authority has been greatly expanded. They have granted themselves additional new powers that give them virtually unlimited authority over all the waters of the U.S. It has long been the belief of many people that the EPA wants this—control over all U.S. waters. It is feared that the scope of federal jurisdiction will affect those persons in real estate, construction, mining, manufacturing, utilities, production of gas and oil, as well as the agricultural community.
When the Clean Water Act was originally approved by Congress in 1972, it only applied to “navigable waters.” Because the federal government has jurisdiction over inter-state commerce, the CWA was able to regulate waters that could support commercial shipping traffic. Over the years, the CWA had been expanded to include some tributaries and wetlands that have a direct connection to navigable waters. Most navigable bodies of waters—rivers, lakes, and etc.—have for years been regulated under the Clean Water Act.
This new ruling clarifies and extends federal jurisdiction to include tributaries and waters that are not navigable. Furthermore, it could give federal agencies the ability to require permits of property owners before doing most anything to their private property. The ruling is designed to give federal agencies broad jurisdiction over land developers, farmers, and anyone who might in some way disturb their land that may be near a small stream, a tributary, headwaters, wetlands, or a drainage ditch, even if the ditch is dry for most of the year. This may include gullies, farm ponds, and dry stream beds where water only flows during heavy rains and very wet times of the year. These regulations could also go so far as to require a federal permit for farmers to spread fertilizer or for golf courses or homeowners to fertilize the grass in their own lawns.
Following the release of the new EPA ruling, the U.S. Congress sought to nullify it. They passed legislation in the U.S. House of Representatives that is now moving through the U.S. Senate and seeks to completely do away with the ruling. In their legislation, Congress seeks to set specific guidelines that the EPA must follow in re-writing the rule. It has been pointed out that this is not the way government is supposed to work, and it is difficult to understand why these changes are being made by a federal agency instead of elected legislators. The EPA is not to make laws, but rather to carry out laws that have gone through the proper legislative process.
Industry, business and farm groups are opposed to and are pushing back against this regulation. What the EPA and the U.S. Army Corps of Engineers are not saying is that the new rule could regulate any water that crosses a person’s land. It is estimated that in Missouri alone, this program would put approximately 500,000 acres under federal oversight and control.
Unfortunately, the EPA, by executive order, is going ahead and granting itself power, regardless of what Congress says. Two Supreme Court decisions sought to limit the EPA’s jurisdiction to just navigable waters, but the EPA gave themselves permission to interpret this to mean “any connection to navigable waters.”
While we all appreciate efforts to keep our waters as pure, safe, and clean as possible, this ruling and regulation goes far beyond what any federal agency should be able to demand. It creates not only a major cost burden but also further strips away individual property rights.