EPA Unveils ‘Largest Expansion’ of ‘Authority to Regulate Private Property’
Clean Water Act rule ropes in streams that only fill when it rains, ornamental landscape features, anything deemed to affect downstream waters.
March 25, 2014 - 6:09 pm
WASHINGTON — The Environmental Protection Agency today unveiled its proposed rule to bring natural and man-made bodies of water big and tiny under the purview of the Clean Water Act, sparking accusations that the administration has embarked on an unprecedented breach of private property rights without scientific basis.
This launches a “robust outreach effort” to gather input in shaping a final rule over the next 90 days, the EPA said, maintaining that the rulemaking isn’t groundbreaking but a clarification effort needed to clearly define streams and wetlands protection after Supreme Court decisions in 2001 and 2006.
Even though the definition of waters protected under the Clean Water Act will reach everywhere from drainage ditches to creeks on private property under the proposed rule, the EPA says “it does not protect any new types of waters that have not historically been covered under the Clean Water Act.”
“We are clarifying protection for the upstream waters that are absolutely vital to downstream communities,” said EPA Administrator Gina McCarthy. “Clean water is essential to every single American, from families who rely on safe places to swim and healthy fish to eat, to farmers who need abundant and reliable sources of water to grow their crops, to hunters and fishermen who depend on healthy waters for recreation and their work, and to businesses that need a steady supply of water for operations.”
The EPA wants to cover “most” seasonal and rain-dependent streams, which account for about 60 percent of stream miles in the country, arguing they have “a considerable impact on the downstream waters.”
Wetlands “near rivers and streams” would be protected under the CWA, and “other types of waters [that] may have more uncertain connections with downstream water and protection will be evaluated through a case specific analysis of whether the connection is or is not significant.”
Overall, the EPA states, a third of waters in the U.S. don’t meet Clean Water Act standards. “The rule will not be finalized until the final version of this scientific assessment is complete,” the EPA said, acknowledging that its draft review is still in progress.
“As expected, the EPA’s proposed water rule expands the agency’s control over natural and man-made streams, lakes, ponds and wetlands. If approved, this rule could allow the EPA to regulate virtually every body of water in the United States,” House Science, Space and Technology Committee Chairman Lamar Smith (R-Texas) said. “In preparing this proposal, the EPA failed to incorporate adequate peer-reviewed science in accordance with the agency’s own statutory obligations.”
“This could be the largest expansion ever of EPA’s authority to regulate private property. It’s troubling that the Administration proposed this expansion before its independent science advisors have had the chance to complete its review of the underlying science,” Smith added. “The Obama administration continues to sidestep scientific integrity in order to fast track an abusive regulatory agenda.”
Senate Environment and Public Works Committee Ranking Member David Vitter (R-La.) echoed the warning that the new rule “may be one of the most significant private property grabs in U.S. history.”
“Today’s rule also shows EPA picking and choosing the science they use,” Vitter added. “Peer review of the Agency’s connectivity report is far from complete, and yet they want to take another step toward outright permitting authority over virtually any wet area in the country, while at the same time providing a new tool for environmental groups to sue private property owners.”
Rep. Randy Hultgren (R-Ill.) noted the irony that the EPA was adding another regulatory burden on National Agriculture Day.
“Today’s proposed water rule is yet another example of the Administration’s reckless use of power,” Hultgren said. “EPA has predictably expanded their jurisdiction to include nearly every body of water: ditches, wetlands, streams, flood plains and even ornamental landscape features. Further, the rule is not based on science—they disregarded their own Scientific Advisory Board and used limited and out-of-date information to analyze the rule’s economic impact.”
“While EPA claims that exemptions to the rule will eliminate costly ramifications for farmers and businesses, in truth, the exemptions are so narrow that most agriculture practices do not even qualify,” continued Hultgren, who sits on the House Science and Agriculture committees.
Sen. Ben Cardin (D-Md.), though, said the EPA and Army Corps of Engineers “have done the right thing by bringing certainty to various regulated sectors of our economy that had been asking EPA for a rule to fix to their regulatory limbo.”
“The importance of the disputed streams and wetlands is on display every day in the Chesapeake Bay watershed. The shoreline of the Chesapeake and its tidal tributaries stretch for over 2,000 miles and more than 100,000 streams and rivers and thousands of acres of wetlands provide the freshwater that flows into the Bay. If we do not protect the health of this incredible network of waters, we cannot hope to restore the Chesapeake to its former health,” Cardin added.
The Sierra Club praised the administration’s action, necessitated by “confusing Supreme Court rulings.”
“For too long, dirty fossil fuel companies and land developers have exploited the uncertainty over which waters are protected by the Clean Water Act to pollute our lakes, rivers and streams. As a result, the drinking water sources for more than a third of all Americans have been put at risk,” Sierra Club Executive Director Michael Brune said. “…We look forward to a robust public comment period and to seeing a strong rule finalized quickly.”