Property Rights at Stake in EPA’s Water Power Grab

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Thanks to the fed­er­al gov­ern­ment, it soon may become far more dif­fi­cult to use and enjoy pri­vate prop­er­ty. The Envi­ron­men­tal Pro­tec­tion Agency and the Army Corps of Engi­neers want to make a water—and land—grab that should scare everyone.

Under the Clean Water Act, the fed­er­al gov­ern­ment has juris­dic­tion over “nav­i­ga­ble waters,” which the statute fur­ther defines as “the waters of the Unit­ed States, includ­ing the ter­ri­to­r­i­al seas.” Prop­er­ty own­ers often need to get per­mits if waters cov­ered under the law will be impact­ed. There­fore, a crit­i­cal ques­tion is what types of “waters” are cov­ered under the CWA. That’s what the EPA and Corps seek to address with a new pro­posed rule that would define “the waters of the Unit­ed States.” As expect­ed, the EPA and the Corps are seek­ing to expand their author­i­ty to cov­er waters nev­er imag­ined when the Clean Water Act was passed in 1972.

For exam­ple, the new pro­posed rule would reg­u­late all ditch­es, except in nar­row cir­cum­stances. This even includes man-made ditch­es. The rule would apply to trib­u­taries that have ephemer­al flow. This would include depres­sions in land that are dry most of the year except when there’s heavy rain.

There’s wide­spread oppo­si­tion to the pro­posed rule. Farm­ers and ranch­ers are con­cerned that the rule could affect nor­mal agri­cul­tur­al prac­tices. Home­builders could face addi­tion­al devel­op­ment costs that would like­ly be passed on to buy­ers. Coun­ties are con­cerned because of cost­ly new require­ments that could impact munic­i­pal storm sew­er sys­tems, road­side ditch­es, among oth­er things.

This broad over­reach could have sig­nif­i­cant costs and delays for per­mit appli­cants. In Rapanos v. Unit­ed States (2006), a major CWA case, Jus­tice Antonin Scalia cit­ed a study high­light­ing the fol­low­ing costs and delays for one of the major types of per­mits (Sec­tion 404 per­mits), “The aver­age appli­cant for an indi­vid­ual per­mit spends 788 days and $271,596 in com­plet­ing the process, and the aver­age appli­cant for a nation­wide per­mit spends 313 days and $28,915—not count­ing costs of mit­i­ga­tion or design changes.”

The American Farm Bureau Federation launched a national campaign to inform people why the Clean Water Act should be 'ditched.' (Photo: American Farm Bureau Federation Facebook)

If the EPA and Corps expand their author­i­ty over more waters, prop­er­ty own­ers will have to secure addi­tion­al per­mits. They will have to get per­mis­sion from fed­er­al bureau­crats to enjoy and use their prop­er­ty because of waters that were nev­er intend­ed to be reg­u­lat­ed under the CWA. If prop­er­ty own­ers don’t com­ply with the law, they could face civ­il penal­ties as high as $37,500 per day per vio­la­tion, or even crim­i­nal penalties.

In their crav­ing for more pow­er, the EPA and Corps are ignor­ing a crit­i­cal aspect of the CWA: coop­er­a­tive fed­er­al­ism. Both the states and fed­er­al gov­ern­ment are sup­posed to play a role in imple­men­ta­tion of the law. Yet, this pow­er grab is an attempt by the fed­er­al gov­ern­ment to push out state and local governments.

At the start of the CWA it states, “It is the pol­i­cy of the Con­gress to rec­og­nize, pre­serve, and pro­tect the pri­ma­ry respon­si­bil­i­ties and rights of States to pre­vent, reduce, and elim­i­nate pol­lu­tion, to plan the devel­op­ment and use (includ­ing restora­tion, preser­va­tion, and enhance­ment) of land and water resources…” The EPA and Corps are pre­tend­ing that this impor­tant pol­i­cy doesn’t exist.

The EPA also had to ignore sound sci­ence and prop­er rule­mak­ing to move for­ward with its pow­er play. The agency devel­oped a draft report enti­tled Con­nec­tiv­i­ty of Streams and Wet­lands to Down­stream Waters: A Review and Syn­the­sis of the Sci­en­tif­ic Evi­dence. A Sci­en­tif­ic Advi­so­ry Board was con­vened to peer review the study, which when final­ized would pro­vide the sci­en­tif­ic foun­da­tion for imple­men­ta­tion of the rule.

Wisconsin farmers fight against the Environmental Protection Agency’s and U.S. Army Corps of Engineers’ 'waters of the U.S.' proposed rule. (Photo: American Farm Bureau Federation via Facebook)

How­ev­er, the EPA final­ized the pro­posed rule before the Sci­en­tif­ic Advi­so­ry Board even met. The EPA defends this action by claim­ing that the final study will still help inform the final rule. But this is putting the cart before the horse (or the rule before the sci­ence). The sci­en­tif­ic foun­da­tion should inform the pro­posed rule so that the pub­lic can pro­vide informed com­ments and have a mean­ing­ful voice in the process.

The pub­lic may be com­ment­ing on a pro­posed rule that seems to be a mere place­hold­er rather than a real pol­i­cy pro­pos­al, or more like­ly, a pro­pos­al that already reflects the final con­clu­sions of the EPA. The EPA has a strong incen­tive to avoid mak­ing major changes to the draft sci­en­tif­ic report and, as a result, the final rule. If major changes are made, the EPA might be forced by law to restart the rule­mak­ing process over.

Con­gress is tak­ing notice. The House Trans­porta­tion and Infra­struc­ture Com­mit­tee passed a bill (H.R. 5078) that would pro­hib­it imple­men­ta­tion of the pro­posed rule, and leg­is­la­tion (S. 2496) has been intro­duced in the Sen­ate to pro­hib­it imple­men­ta­tion as well. In addi­tion, the FY 2015 House Inte­ri­or and Envi­ron­ment appro­pri­a­tions bill that passed out of the appro­pri­a­tions com­mit­tee includes a pro­vi­sion that with­holds funds for imple­men­ta­tion of the rule.

Ulti­mate­ly though, it is the respon­si­bil­i­ty of Con­gress to define the term “nav­i­ga­ble waters” instead of defer­ring to the EPA and the Corps. His­to­ry shows these agen­cies will con­tin­ue to seek to expand their author­i­ty. As with oth­er laws, Con­gress needs to reassert its author­i­ty and rein in agency over­reach. Pri­vate prop­er­ty rights are at stake.