EPA clean water rule could extend agency’s reach over private property

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Michael Bastasch DCNF Managing Editor
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An Environmental Protection Agency draft proposal could end up allowing the agency to regulate bodies of water, no matter how small, located on private property.

The proposal is intended to clarify the EPA’s regulatory authority under the Clean Water Act.

While the EPA argues that the rulemaking is necessary to clear up uncertainties left in the wake of two Supreme Court rulings, Republicans argue that the agency’s action could amount to one of the biggest private property grabs in history.

“The ‘waters of the U.S.’ rule may be one of the most significant private property grabs in U.S. history,” said Louisiana Republican Sen. David Vitter. “Today’s rule also shows EPA picking and choosing the science they use. Peer review of the Agency’s connectivity report is far from complete, and yet they want to take another step toward outright permitting authority over virtually any wet area in the country, while at the same time providing a new tool for environmental groups to sue private property owners.”

The EPA’s draft rule defines “waters of the United States” as “traditional navigable waters; interstate waters, including interstate wetlands; the territorial seas; impoundments of traditional navigable waters, interstate waters, including interstate wetlands, the territorial seas, and tributaries, as defined, of such waters; tributaries, as defined, of traditional navigable waters, interstate waters, or the territorial seas; and adjacent waters, including adjacent wetlands.”

But the agency also alludes to other bodies of water which could be regulated if they have a “significant nexus” to a “traditional navigable water, interstate water, or the territorial seas.” It is unclear what significant nexus means, but the EPA says it will provide one when the rule is published.

Environmentalists cheered the EPA’s regulatory draft, arguing that such rules were needed to clear up legal uncertainties and provide necessary protections.

“This is good news for boaters, anglers, swimmers and families who rely on clean drinking water,” said Peter Lehner, executive director of the Natural Resources Defense Council. “EPA took an important step to finally rescue these waters from legal limbo. Even though these are common-sense protections, the polluters are sure to attack them.”

But while the EPA says it will prove exemptions for the agriculture industry in its new rule, it will determine on a case by case basis whether or not other bodies of water, possibly those on private property, have a “significant nexus” to regulated water bodies. Specifically, the EPA cites one previous Supreme Court decision in 2006 which said that even if water is impounded or dammed up it does not mean it is no longer under federal jurisdiction.

“[N]or can we agree that one can denationalize national waters by exerting private control over them,” the Supreme Court wrote.

“As a matter of policy and law, impoundments do not de-federalize a water, even where there is no longer flow below the impoundment,” the EPA states, adding that tributaries will get similar treatment. The agency says that even tributaries which are man-made could fall under EPA authority, this includes ponds, canals, impoundments and ditches.

“Clean water is essential to every single American, from families who rely on safe places to swim and healthy fish to eat, to farmers who need abundant and reliable sources of water to grow their crops, to hunters and fishermen who depend on healthy waters for recreation and their work, and to businesses that need a steady supply of water for operations,” said EPA Administrator Gina McCarthy.

But Republicans question how the EPA could justify regulating water bodies, including man-made ones, that are no longer connected to navigable waterways or other traditionally regulated bodies of water. The GOP has also pointed to the lack of peer-reviewed science to back up agency claims.

“As expected, the EPA’s proposed water rule expands the agency’s control over natural and man-made streams, lakes, ponds and wetlands,” said Texas Republican Rep. Lamar Smith. “If approved, this rule could allow the EPA to regulate virtually every body of water in the United States.”

“In preparing this proposal, the EPA failed to incorporate adequate peer-reviewed science in accordance with the agency’s own statutory obligations,” Smith added. “This could be the largest expansion ever of EPA’s authority to regulate private property. It’s troubling that the Administration proposed this expansion before its independent science advisers have had the chance to complete its review of the underlying science. The Obama administration continues to sidestep scientific integrity in order to fast track an abusive regulatory agenda.”

Last year, House Republicans called out the EPA for rushing ahead with the rule before the science justifying the action had even been peer-reviewed. When the EPA submitted its draft water rules last September, they released the non-peer-reviewed scientific study backing their review on the same day — in violation of White House regulatory guidelines.

“Rather than allowing time for a review of their proposed regulations, the EPA is rushing forward regardless of whether the science actually supports the rule,” Smoith and fellow House Republicans wrote to the White House last year. “The proposed rule could give the EPA unprecedented power over private property in the U.S.”

“Racing through the approval process without proper peer review and transparency amounts to an EPA power play to regulate America’s waterways,” the Republicans added. “Such unrestrained federal intrusion poses a serious threat to private property rights, state sovereignty and economic growth.”

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