NCPA - National Center for Policy Analysis

Two Federal Agencies Threatening Water Ways and Property Rights

May 1, 2015

On April 21, 2014, the Environmental Protection Agency (EPA) and the Army Corps of Engineers published a proposed rule — "Definition of 'Waters of the United States' Under the Clean Water Act" (CWA) — to define which waters are covered under the Clean Water Act. The proposed rule could cover almost any type of water, giving the two agencies far greater power than authorized under the CWA.

The proposed "Waters of the United States" (WOTUS) rule is complex and vague, with little clarity coming from either agency. Three key points can help cut through the confusion and better explain the proposed rule:

  • The proposed rule would assert jurisdiction over numerous types of waters, including tributaries, adjacent waters and other waters. The definition for "tributaries" covers any water with a bed, banks and ordinary high water mark that contributes flow, either directly or through another water, to a traditional navigable water, interstate water, territorial sea or impoundment.
  • The proposed rule could drastically infringe on property rights. If a water is covered under the law, property owners could be required to secure costly and time-consuming permits to take actions that affect these waters.
  • The Rule Exceeds the Broadest Interpretation of Supreme Court Precedent on CWA Jurisdiction (Rapanos v. U.S. 547 U.S. 715, 2006).

Unless Congress acts before the final rule is published, probably within the next few months, this proposed power grab could soon become a reality — the agencies recently sent their final rule to the Office of Management and Budget for its approval.

Congress should emphasize in statute that water resources are best protected when the federal and state partnership outlined in the CWA is respected. Congress should also develop clear definitions for jurisdictional waters through bright-line rules and define "waters of the United States" as generally being limited to traditional navigable waters. Congress must take these important actions now.

Source: Daren Bakst, "What You Need to Know About the EPA/Corps Water Rule: It's a Power Grab and Attack on Property Rights," Heritage Foundation, April 29, 2015. 

 

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