Diary

EPA to vastly expand regulation of non-navigable waters

Do you own property that ever gets wet? You’re about to be subject to the EPA under its preposterously expanded definition of navigable waters.

President Obama’s Environmental Protection Agency (EPA) and Army Corps of Engineers (ACE) have proposed a rule set to go into effect next month that dramatically expands the definition of “waters of the United States” regulated under the Clean Water Act (CWA). Under the CWA, Congress granted those agencies authority to regulate “navigable waters.” Not content with regulating navigable waters, the bureaucrats now seek to dramatically expand the scope of their own authority to include “other waters” where “either alone or in combination with similarly situated ‘other waters’ in the region, they have a ‘significant nexus’ to a traditional navigable water, interstate water, or territorial seas.” Most ominously, the agencies note: “The terms do not refer solely to the water contained in these aquatic systems, but to the system as a whole including associated chemical, physical, and biological features.”

It’s worth pausing for a second to let the implications of the last sentence seek in. Under this definition the EPA is not limited to regulating navigable lakes and rivers or even to streams and watersheds that feed directly into navigable waters. Indeed, it’s not even limited to “water.” It is hard to imagine any parcel of property in America that has no chemical, physical or biological connection to any water system.  Thus, this is a truly astonishing power grab. Without going to Congress or any democratic institution, federal agencies are giving themselves authority to regulate virtually all property in America. This is a big deal and should be getting a lot more attention than it is.

Perhaps it gets less attention than it should because of the bland word “regulation.” This euphemism disguises the ugly coercion at the heart of agency enforcement. Under the Clean Water Act the EPA has sent individual property owners to prison for making improvements to their property. In one famous case, an immigrant mechanic by the name of John Pozsgai was sent to federal prison for cleaning up an old auto-junk yard on his own property. His crime? The EPA deemed his property connected to a wetland based on a small drainage ditch on the otherwise dry land and concluded that he was “discharging pollutants into waters of the United States” when—after removing the old cars and tires—he filled in the land with earth, topsoil and sand. If after reading that you think the EPA can be trusted to reasonably interpret such vague language as “significant nexus,” then I’ve got some “wetlands” to sell you.

[mc_name name=’Sen. Rand Paul (R-KY)’ chamber=’senate’ mcid=’P000603′ ] has introduced legislation in the U.S. Senate to block the rule. He’s also talking about it (see http://thehill.com/opinion/op-ed/234685-epa-water-rule-is-blow-to-americans-private-property-rights), which is something disgracefully few national politicians are doing. It’s all well and good to talk about small government as an abstract principal, but the real test is standing up to government overreach when it matters.  Well, here’s your chance.  This is a real, concrete example of government overreach and it’s happening right now.  The new proposed rule “interpreting” the CWA to mean vastly more than Congress authorized is a perfect example of how the federal regulatory state expands its power amidst a shadow of ignorance enabled by too many of our leaders. One almost suspects that many politicians want the hard decisions that really hurt people to be made by unelected bureaucrats. Bureaucrats, after all, don’t have to face the voters.

We need to be talking about this issue. We need to do everything in our power to stop it. Because if we do not then you may wake up next month to find that the property you thought you owned is under the benevolent control of our dear leaders at the EPA.