NCPA - National Center for Policy Analysis

The EPA Targets Private Property Over Water

June 16, 2015

The Environmental Protection Agency (EPA) has promised clarity over the last year as it put the final touches on its expansive and overreaching definition of "waters of the United States" (WOTUS). Yet, a week after they published the final rule, the only clarity the EPA has provided is its intent to snatch up every piece of land that can channel, pool or absorb water and include it within its newly minted jurisdiction.

The effects of this rule are both far-reaching and disastrous:

  • The amended definition of a "tributary" will expand the EPA's dominion to ephemeral flows. If a tributary contributes any flow at all, regardless of frequency or volume, to a downstream water, it is now within the EPA's purview.
  • To build one's home, to plant crops as a means of livelihood, to erect a fence or build a road, the average person will now need to seek a permit from the Corps of Engineers.
  • A permit can cost into the hundreds of thousands; or you can gamble, proceed with your development plans, and risk exposure to fines up to $37,500 per violation, per day.

Making matters worse, there is no clear ability to appeal a Corps of Engineers decision about what is or is not a "navigable water." This leaves property owners who are within the jurisdiction of unfavorable circuits with no ability to recoup costs from litigation or the effective loss of their property.

Unsurprisingly, inside the EPA, the left hand does not appear to know what the far-left hand is doing. Two days after the ink dried on the final WOTUS rule, the EPA released its proposal for expanding the Renewable Fuel Standard through 2016. Together these rules will require more corn, more land and more permits, with fewer property rights and less freedom — leaving farmers in the crosshairs of bad policy.

Source: Leigh Thompson, "The EPA's Troubled Waters," National Review, June 5, 2015. 


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