Yesterday, the EPA, together with the U.S. Army Corps of Engineers announced changes to the existing “navigable waterways” rule, adding a variety of bodies of water to their existing regulatory purview. The rule change, they claim, amounts to a mere 3% increase in the territory they control and can enforce the Clean Water Act over.
But while the amount of land the EPA is claiming territorial rule over is concerning, it’s the type of “navigable waterways” they now believe are under their control. In addition to the lakes, rivers, tributaries and bays that an average American might recognize as a navigable waterway, the EPA seems to be asserting its charge over basically every body of standing water in existence, including drainage ditches, overflow reservoirs, and, yes, those potholes in your street that fill up with water every time it rains just a little.
The Obama administration issued a rule on Wednesday increasing the number of small bodies of water and wetlands that fall under federal protection, a move that has riled some lawmakers, business executives and farmers who say the rule unnecessarily expands federal bureaucracy.
The rule, issued jointly by the Environmental Protection Agency and the U.S. Army Corps of Engineers, is estimated to put about 3% more waterways throughout the U.S. under new federal jurisdiction, which will require more permits for use of those waters and could restrict access altogether, according to the EPA. Agency officials said Wednesday that the rule will protect drinking water supplies for more than 100 million Americans.
The EPA has already noted that the “small bodies of water” include anything that looks, smells or behaves like a wetland, including, but not limited to “prairie potholes.” In clarifying its statements, the EPA hasn’t done much to dispel the notion that they will use the power to radically redefine their own regulatory boundaries, stating that “the rule will seek to protect only waterways that have physical features of flowing water” (according to a fact sheet found by the Wall Street Journal, linked above).” Heaven help the landowner of a trickling sewer drain that runs a bit downhill.
According to the American Energy Alliance, which is monitoring the impact of EPA regulations on America’s energy producers, the rule is a blatant attempt to interfere with private property rights, specifically those of energy producers, who may have ersatz “wetlands” on their properties, or who may create loosely-defined “navigable waterways” by creating drainage ditches or runoff collection reservoirs on their property to handle potential byproducts of the production process. Although these waters would be contained on private property, and don’t necessarily connect with any water that Americans use for drinking or bathing, the EPA wants to allow itself the right to inspect and, likely, punish producers for the “dirty water” – even if it’s just an oversized puddle in a parking lot.
The EPA has tried this before, only to run up against the Supreme Court. As Heartland’s own James Taylor noted in Environment and Climate News, when these EPA first proposed the rules last summer, they did so in open violation of and in challenge to the Supreme Court’s clear directives – that the EPA rules as they were were already an overreach. And now, they’ve expanded even that.
Congress looks to be skeptical about the EPA’s claim that they’re just concerned about our clean water, so there’s opportunity to remain hopeful. In the meantime, keep your puddles clean.