Drainage Ditches Aren’t Navigable Waters

Alan Wilson Attorney General, South Carolina
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When you think of a navigable water, you think of the Mississippi or the Potomac River not a ditch or a puddle. However, the Environmental Protection Agency (EPA) has a different viewpoint and is attempting to burden major parts of our nation’s economy including our farmers, realtors, engineers, builders, manufacturers, foresters, and even golf and tourism professionals with intense regulations and stipulations.

In April, the EPA and the U.S. Army Corps of Engineers jointly released a proposed rule called the “Definition of Waters of the U.S.” This 80-page proposal has a laudable intent of protecting small streams and wetlands from the risk of pollution. However, the unintended consequences of the rule would greatly expand the scope and limitless definition of “Waters of the U.S.” This expansion would bring many roadside ditches, small ponds on family farms, water features on golf courses, and storm water systems under extremely burdensome federal regulation.

The results of this rule would be devastating. Farmers, foresters, contractors, and even golf course superintendents would be subject to additional regulation and even federal permits. For example, road project mitigation costs alone could range from $180,000 to $2.8 million or fines of $37,000 per day. This draconian measure would impose financial hardship and bureaucratic headaches on property owners, county governments, farmers, developers and small businesses.

One of my biggest concerns with this proposed rule as South Carolina’s Attorney General is that unelected bureaucrats at the EPA and the Army Corps have virtually no limitations on what they can determine to be “navigable waters.”  This is why numerous South Carolinians have shared their fears about this new rule with me. They have reason to fear that a ditch which hasn’t held standing water in years could now meet the criteria.

Farmers, ranchers and other land owners shared fears that they would face major obstacles to using their land, such as the need for permits for basic land uses including digging a ditch or building a fence.

Foresters shared with us their concerns that a common ditch running along a forest road that connects with a larger public highway ditch that discharges into a wetland or waterway would qualify the entire ditch system as a “navigable water,” just like the Mississippi River.

Realtors and homebuilders would struggle with the fact that these regulations could drive up the already expensive cost of building a home by thousands of dollars. Studies show that for every $1,000 increase in the cost of home ownership, 650 Americans are priced out of the American dream of owning a home.

This is the latest example of the new norm in Washington: unprecedented overreach by unelected bureaucrats who circumvent the legislative process by attempting to regulate what Congress is unwilling or unable to legislate. Whenever regulation increases, personal freedom decreases. These regulations carry great costs to the freedoms and finances of all Americans.

The bottom line is that we cannot sit idle as unparalleled rules and regulations significantly restrict our rights and ability to care for our families.

This is why I joined 10 fellow attorneys general and six governors earlier this month in formally commenting on this rule, asking the EPA and the Army Corps to withdraw this misguided and costly intrusion into the property rights and liberty of our citizens.

From now until November 14, concerned citizens and elected officials have the opportunity to do the same. Interested parties can share their comments on how the EPA’s new Waters of the U.S. rule would vastly expand the EPA and Army Corps of Engineers authority and cause major economic disruptions. I urge everyone reading this to join me in sending the message that this rule would have nothing but a negative impact on our way of life.

Alan Wilson is South Carolina’s Attorney General and currently serves as Chairman of the Republican Attorneys General Association.

Alan Wilson