Throughout 2014 the U.S. Environmental Protection Agency made significantly moves to expand its jurisdiction over previously unregulated bodies of water across the United States.
As a justification for its controversial initiative, on Jan. 15 the EPA released its scientific analysis of its regulatory plan to include isolated and intermittent bodies of water under EPA’s authority.
The much-anticipated 408-page report is expected to pave the way for EPA to issue a final rule later this year, a move almost guaranteed to set up a confrontation between Congress and the Obama White House.
The agency, working in conjunction with the U.S. Army Corps of Engineers, now proposes to regulate all “waters of the United States,” or WOTUS, extending federal regulatory authority beyond “”navigable” waters of the United States,” as laid out in the Clean Water Act (CWA).
Expanding Land Control
If the rule survives expected legislative and legal challenges, the EPA will become a significant player in land-use decisions on millions of acres of private property in the rural United States, affecting farms, ranches, and orchards as well as the mining and timber industries.
EPA says its report draws on 1,200 peer-reviewed scientific studies examining the connections between streams and wetlands and larger downstream bodies of water.
According to the report, “The scientific literature clearly shows that wetlands and open waters in riparian areas in floodplains are physically, chemically and biologically integrated with rivers via functions that improve downstream water quality.”
EPA contends its proposed WOTUS regulation is necessary to clarify uncertainties arising from two Supreme Court decisions from 2001 (SWANCC v. U.S. Army Corps of Engineers) and 2006 (Rapanos v. United States). Those decisions restricted EPA’s and the Corps’ regulatory authority over wetlands under the CWA but did so in ambiguous language leaving many questions unanswered.
All-Inclusive Definition
But by attempting to extend federal jurisdiction from “navigable” waters of the United States—rivers, bays, shipping channels, etc.–to all the nation’s “waters,” EPA has given rise to fears it will regulate ditches, stock ponds, prairie pot holes (common in the Plains States), and other depressions that are only intermittingly wet as a result of rainfall of snowmelt.
Environmental groups have supported the EPA’s initiative and welcomed the latest report. “Today’s release of the final report on the chemical, physical and biological connections between water bodies is an important step in the nearly 15-year-long effort to resolve the confusion over which waters are—and are not—covered in the Clean Water Act,” Jimmy Hague, director of the Theodore Roosevelt Conservation Partnership’s Center for Water Resources, said in a statement.
However, the plan has drawn the ire of such groups as the American Farm Bureau, National Home Builders Association, and the National Mining Association.
‘Federal Zoning’
Craig Rucker, executive director of Committee for a Constructive Tomorrow, calls the EPA move a huge power grab. “Under the pretext of ‘protecting’ bodies of water, EPA is transforming itself into a national land-use agency.” he said. “EPA is establishing a system of federal zoning, under which rural landowners and businesses will have to get permits from EPA if they want to carry out what are now routine operations on their property. It is an unprecedented power grab.”
WOTUS already faces hurdles in Congress. In 2014, the House of Representatives passed the Waters of the United States Regulatory Overreach Protection Act of 2014, aimed at preventing the EPA’s reinterpretation of its authority over waters in the United States. The bill’s sponsors promise to bring it up again this year, with an up-or-down vote likely in the new Republican-controlled Senate.
In addition, there have been off-the-record hints the new Congress could try to prevent the rule by attaching a rider to must-pass spending bills withholding funding for the implementation of WOTUS.
INTERNET INFO Environmental Protection Agency, Connectivity of Streams & Wetlands to Downstream Waters: A Review & Synthesis of the Scientific Evidence. January 15, 2015. http://heartland.org/policy-documents/connectivity-streams-wetlands-downstream-waters-review-synthesis-scientific-evidenc
Bonner R. Cohen is a senior fellow with the National Center for Public Policy Research, a position he has held since 2002.
