Blogs - Blogs
Eye on the EPA: EPA’s Takeover of the “Waters of the U.S.”
Expanded water jurisdiction could lead to EPA controlling Americans’ backyard puddles…
November 21, 2013

The U.S. Environmental Agency (EPA) proposed a draft guidance in April 2011, defining the "waters of the U.S." under the Clean Water Act (CWA) and giving EPA broad authority over regulating bodies of water, even on private property.  Since the draft has been proposed, there has been significant criticism surrounding the guidance's expansive interpretation of CWA jurisdiction.  Instead of clearly abandoning the contemptuous guidance document outright, EPA has since doubled-down on one of the most significant private property grabs in U.S. history, with the development of a new rule that would give the federal government outright permitting authority over virtually any wet area in the country and would provide a new tool for environmental groups to sue private property owners.

Local creeks, drainage ditches, farm ponds, or puddles in a backyard could all fall under EPA's heavy regulatory hand because the Agency has determined their in-house science justifies taking over property jurisdiction from farmers, small businesses, and families.

Multiple attempts by EPA and the U.S. Army Corps of Engineers to implement their federal intrusion have been struck down by the Supreme Court of the United States.  Because of the increased scrutiny, EPA purported to "withdraw" the draft guidance this year, but in a classic sleight of hand they simultaneously introduced a new proposed rule - that says essentially the same thing.  EPA also introduced a "connectivity report," which claims that every body of water, no matter how small, is somehow connected.  And according to the EPA, this report justifies the government's intrusion onto private lands.  Scientific peer review of the "connectivity report" is far from complete, and numerous groups and individuals have already identified significant flaws in the report.  However, EPA's draft rule, which is predicated on the "connectivity report," is already moving towards its final stages of implementation and has been sent to the Office of Management and Budget (OMB) for interagency review.


"Connectivity Report" is a real stretch (pun intended)

The Connectivity Report would supposedly justify a significant expansion of the Clean Water Act's scope.  It ties together every small stream and isolated wetland to larger bodies of water.

EPW Republicans see this as a power grab or "takeover" by giving EPA the authority to regulate every square foot in the country that has water on it, including incidentals like rainwater, storm runoff, and puddles.

In the coming weeks, OMB is scheduled to review the draft rule which is based on the Connectivity Report.  EPW Republicans intend to challenge EPA's rushed rulemaking effort.


Real World Consequences

In New York, a landowner is seeking redress against EPA officials after years of agency harassment and wrongful assertions of CWA regulatory jurisdiction.  According to a federal lawsuit, EPA retaliated against the landowner after he challenged EPA and the Army Corps' jurisdictional claims, in attempt to make an example out of him.  See Huntress v. EPARead a letter from the landowner here.  The lawsuit refers to an EPA regional administrator's 2010 statements regarding agency staff training and how EPA staff should mimic the Roman practice of crucifying victims in order to set an intimidating example for others and proposes that a similar tactic was used against the landowner in New York.  The regional administrator referenced has since resigned.

In Sante Fe, New Mexico, the U.S. Army Corps of Engineers in 2012 attempted to label a dry creek bed on private property as a "water of the U.S.," which would then be subject to CWA regulations.  When the family who owned the land moved in, they began clearing brush and vegetation to clean up their property. The Corps took issue with this and sent the family a ‘Notice of Violation' for conducting unpermitted work in a "water of the U.S." and ordered them to desist the cleanup and maintenance efforts, or else be subject to civil and criminal liability.  The couple fought back and sued the Army Corps.  Click here to read more.

 

EPW Republicans are challenging the vast expansion of EPA's water jurisdiction

EPW Committee Republicans have a long history of challenging the EPA's egregious guidance. Recently, in February 2013, U.S. Sens. John Barrasso (R-Wyo.) and David Vitter (R-La.), EPW's top Republican, led a group of 30 senators urging the Administration to withdraw the draft guidance.  Read more here.

In 2009 during an EPW hearing, Committee Democrats attempted to pass a ruling to expand EPA's authority through the Clean Water Restoration Act.  Vitter and Barrasso offered multiple amendments to prevent such an expansion of jurisdiction, yet one by one the Democrats voted down each amendment. Click here for more.

This issue was seemingly resolved on September 17, 2013, when EPA informed congressional staff that the draft guidance would be withdrawn, but they refrained from making a public announcement.  Then, on the very same day, EPA posted on their website that the Agency and the U.S. Army Corps of Engineers, their partner on this guidance, would proceed with the rulemaking.  Read more about EPW Republicans calling on the EPA to clarify their confusion and ambiguity.

EPW Republicans believe that the EPA should completely and unconditionally abandon the draft guidance in any and all circumstances, especially now that the Agency's rulemaking efforts are plagued by uncertainty and distrust.


Legal History Behind Limiting Jurisdiction:

Two important Supreme Court decisions, otherwise referred to as SWANCC and Rapanos, were critical to limiting federal regulation, including EPA and Army Corps jurisdiction.   These two cases were pivotal in ensuring the EPA and Corps jurisdictional/permitting authority did not extend to every remote body of water, despite having no immediate connection to a navigable water of the United States.  Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, was decided in 2001, and Rapanos v. United States, was decided in 2006.   In SWANCC, the Army Corps theorized that their jurisdiction could essentially be set on the wings of a migratory bird.  The Corps attempted to claim that any body of water in which a bird could land should fall under federal jurisdiction.  In Rapanos, the EPA theorized that their jurisdiction under the Clean Water Act for wetlands permitting of fill and dredge material was essentially limitless no matter how remote the project was from a navigable water.  For the radical-left, which has long pushed for federal jurisdiction of virtually any water body, including intermittent ponds and streams, these two decisions have frustrated their ability to file lawsuits against private landowners for any action they deem inappropriate on that private property.

 

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