EPA Water Rule is Assault on Private Property Rights

EPA Water Rule is Assault on Private Property Rights

May 28, 2015

Government and water share similar traits. They both serve important purposes, but if they aren't properly dammed they'll flood in and make a huge mess.

By: Patrick Hedger-Policy Director, American Encore

The latest rule out from the EPA stands to give the federal government unprecedented control over tens of millions of acres of private property and other lands not under Washington's initial jurisdiction. What's most shocking is that this control over private land is going to come due to a clean water rule.

The Clean Water Plan, better known as the Waters of the United States or WOTUS rule, just announced by the EPA is an aggressive expansion of government chaos that would make the Joker blush through his makeup. Via the WOTUS rule, the EPA is essentially redefining what types of bodies of water it is allowed to police. Beyond anything else, we all ought to be concerned by a law enforcement agency suggesting it has the authority to assign itself powers. 

The Clean Water Act, the law passed by Congress that actually grants the EPA its power to police the water, stipulates that the EPA shall only have the power to set pollution laws and other standards for navigable waterways. The key term here is navigable, as in waterways that can facilitate commerce due to their ability to be navigated by ships. Since the 1970s, the height of the eco-movement when all of these various environmental laws were passed and the EPA was founded, the definition of navigable waterways has changed via various court rulings and other EPA rules to include prominent and permanent bodies of water that also feed into these navigable waterways. This makes sense to a certain extent yet still remains an affront to the English language to consider anything not navigable by ships to be a "navigable" waterway. The EPA has repeatedly pushed the bounds of this logic to its breaking point.

The EPA has tried to regulate tiny creeks and isolated wetlands, putting businesses and home developers seeking to expand or build structures through expensive regulatory compliance mazes. Americans already spend nearly $2 billion annually trying to comply with the existing onerous rules. The Supreme Court has rebuked the EPA on several occasions for its efforts to expand control over bodies of water that hardly meet the criteria set out under the Clean Water Act. Now the EPA is responding by redefining its jurisdiction with absurdly broad terms. The EPA's WOTUS rule will feasibly allow for the agency to regulate bodies of water that are completely isolated from any navigable waterway or its tributary. Further, the rule will give EPA the power to regulate activity in and around geographic structures that may not contain any water outside of a rainstorm at all! If you have a ditch on your property where water gathers during a storm and eventually flows into a tiny creek, the EPA now believes it can regulate what you do with the land around that ditch.

The only thing the EPA has said to allay these concerns is essentially that they promise not to use their power in this way. This promise holds as little water as all the new places the EPA claims to have Clean Water Act authority given the agency's history of harassing people for filling in dry "wetlands" with gravel and other egregious overreaches for which they've been subject to the Supreme Court's rebuke. 

The EPA can't be trusted and no federal agency should have such broad power to determine the rules by which it plays. No clean water rule should ever be so broad as to allow the government to tell people what they can do on their land!

What can you do to stop this huge federal power grab? The Senate is on it. A bipartisan bill to reassert Congressional control over the EPA and reign the agency back in has already been introduced. You can click here to send a message to your Senators to support it.


Read more about the WOTUS rule at these links:




It's Time for an American Encore