Redefinition of “waters of the United States” under the Clean Water Act would give EPA jurisdiction over as little as a backyard ditch.
by Bridget Johnson Bio
November 12, 2013 – 5:53 pm
WASHINGTON While the country is immersed in Obamacare headlines and a congressional tussle over delays and mandates, the Obama administration is stealthily moving toward unprecedented control over private property under a massive expansion of the Environmental Protection Agency’s Clean Water Act authority.
The proposed rule, obtained by the House Science, Space, and Technology Committee in advance of EPA Administrator Gina McCarthy’s testimony at a Thursday oversight hearing, widely broadens the definition of waterways over which the federal government has jurisdiction to as little as a water ditch in a backyard.
The Clean Water Act redefinition of “waters of the United States” would include all ponds, lakes, wetlands and natural or manmade streams that have any effect on downstream navigable waters whether on public lands or private property.
And, committee Republicans note, the administration is trying to move forward with the rule at a breakneck pace, relying on the findings of a scientific report that hadn’t undergone peer review at the time the rule was submitted to the White House for approval.
“The EPA’s draft water rule is a massive power grab of private property across the U.S. This could be the largest expansion of EPA regulatory authority ever,” Chairman Lamar Smith (R-Texas) said after seeing the proposal. “If the draft rule is approved, it would allow the EPA to regulate virtually every body of water in the United States, including private and public lakes, ponds and streams.”
“The Obama administration’s latest power play to regulate America’s waterways is an unprecedented effort to control the use of private property,” Smith added, promising to question McCarthy this week about her agency’s “ever-expanding regulatory agenda.”
The EPA has made no secret of wanting to balloon its jurisdiction over all waters, even testing the limits by going after businesses that could potentially taint any type of water on its way to a body of water.
A federal court recently threw out the EPA’s attempt to force a poultry farmer in West Virginia to obtain a costly Clean Water Act permit, determining that storm waters flowed across the farmer’s property and eventually wound up in “waters of the United States.” For this, the farmer was threatened with possible imprisonment and fines of up to $37,500 per day as the EPA maintained she was responsible for any feathers or manure bits making their way to a waterway.
The United States District Court for the Northern District of West Virginia noted that “common sense and plain English lead to the inescapable conclusion” that runoff from storm water doesn’t fall within the guidelines of needing a permit under the Clean Water Act, a decision that Sen. David Vitter (R-La.), ranking member on the Environment and Public Works Committee, said the EPA needed to accept and extend to all of its enforcement operations.
“It’s clear that EPA had no business subjecting this poultry farmer to a bureaucratic maze of federal regulation. This is just another attempt from EPA to expand its regulatory powers,” Vitter said last week. “Following the court decision, I hope EPA will reconsider its CWA enforcement priorities and nationally implement the decision’s analysis of the CWA so that farmers and other land owners are not further confused or otherwise harassed by the agency.”
Vitter penned a letter to Nancy K. Stoner, acting assistant administrator for the EPA’s Office of Water, highlighting the court’s decision as “a refreshing reproach to EPA’s disdain for landowners throughout the country.”
“The proper course of action would be for EPA to accept the decision and apply it uniformly so that our farmers are not further confused or otherwise harassed by the agency,” Vitter wrote. “It should not take taxing litigation to remove the government’s threat of ruinous fines and penalties for the productive and lawful use of private property, especially in circumstances where bureaucratic interference is clearly beyond the scope of federal regulatory authority.”
The EPA states on its website that court rulings since the act’s 1972 passage have “caused confusion about which waters and wetlands remain protected.”
“Improvements” to the act that clarify jurisdiction “are necessary to reduce costs and minimize delays in the permit process and protect waters that are vital to public health, the environment and economy,” the EPA adds.
Last week, Smith and Environment Subcommittee Chairman Chris Stewart (R-Utah) sent a letter to the Office of Management and Budget expressing concern that the EPA is “rushing forward regardless of whether the science actually supports the rule.”
“This rule could represent a dramatic expansion of EPA’s authority to include isolated wetlands, streams and ditches,” they wrote. “Such unrestrained federal intrusion poses a serious threat to private property rights, state sovereignty and economic growth.”
The EPA submitted its draft rule to the OMB on Sept. 17, the same day it sent a draft scientific assessment of the rule to the agency’s Scientific Advisory Board. Smith and Stewart reminded the OMB that open peer review of the scientific basis for the rule should happen first, per OMB rules that require proper procedure for “highly influential” rules that “have a potential impact of more than $500 million in any one year on either the public or private sector.”
“By rushing through this process, the Agency not only violates the law, but ignores its commitments to Congress and the American people,” the chairmen added. “This rushed rulemaking is a clear attempt to rubber stamp the pre-determined regulatory agenda.”