The EPA’s New Water Rule Leaves the Economy High and Dry

When the Clean Water Act was first conceived, the EPA could only restrict entrepreneurs when they attempted to pollute bodies of water that were used by their fellow businesses, or what the EPA calls ‘navigable waters.’ However, its original mission is far too modest for modern-day bureaucrats.

In March the EPA unveiled their proposed “Waters of the U.S.” rule. If finalized, this rule would expand the federal government’s regulatory authority over millions of acres of wetlands and millions of miles of streams. It would place virtually all bodies of water, no matter how small their size or impact on commerce, under EPA authority.

Thankfully, legislators are taking action against this agency’s extraordinary power grab. Last week, 31 senators, including Ted Cruz of Texas and Mike Lee of Utah, introduced The Protecting Water and Property Rights Act of 2014, a bill that would prevent the EPA from expanding their authority under the CWA.

In the words of Senator Cruz, “The EPA is following in the footsteps of our lawless President. The EPA’s unilateral expansion of the Clean Water Act to include regulation of puddles and temporarily flooded areas is an abuse of power that would allow the EPA to march into the backyards of many Americans. Congress must exercise its power to strictly define what the EPA may do under the Clean Water Act to protect our nation’s landowners, farmers, and homeowners from undue harassment by the EPA."

In the House of Representatives, the Appropriations Committee approved a bill on June 18 that would fund the Army Corps of Engineers, but with a provision that bars the agency from enforcing the Waters of the US rule, a move in the right direction.

The way the agency justified this exponential expansion of their powers over bodies of water traditionally regulated by states and localities was by making the case that all bodies of water in one way or another flow into these larger navigable waters. In a study published last September, the EPA made the case that because all bodies of water have a connection to one another, pollution in a single stream could flow to the rest. Coincidentally, this study was released to the public the very same day that they proposed the rule.

If the EPA were to expand its authority over even more of America’s waters, its damaging effect on the economy would only grow. A business or property owner who simply wishes to move soil from one area of a body of water to another must apply for a permit, since this movement is considered to be polluting. The average permit can cost upwards of $271,000 and take 788 days to be processed which leads to private companies and municipalities annually being forced to pay $1.7 billion to the EPA for the right to develop or build over bodies of water. And if a developer fails to secure the proper permits, $37,500 in fines can be incurred every day for unlawfully developing a stream or wetland.

This is not the first time that the EPA has overreached in its authority. In 1986 the agency claimed that any body of water that a migratory bird landed in was under its jurisdiction. Its blatant and repeated abuse of its authority was checked first in 2001 and again in 2006 when the Supreme Court ruled in Rapanos v. The United States that the EPA could not block a developer from filling in a wetland in order to build a mall even though it was connected by a stream to a larger body of water. As Justice Kennedy wrote in his decision, the EPA must prove that a “significant nexus (connection)” exists between the body of water the agency claims jurisdiction over and navigable waters. So rather than accept the court’s decision, the EPA concocted a study last year that claims that all bodies of water have a significant connection to navigable waters, and thus should be under its authority.

At a time when it is still unclear if the country is on the road to economic recovery, we can’t afford additional burdensome regulations that inhibit entrepreneurs and farmers from working and investing on their own property.