Research & Commentary: Waters of the United States

Published October 28, 2015

The U.S. Court of Appeals for the Sixth Circuit has issued a temporary nationwide injunction on the controversial new Waters of the United States rule (WOTUS) under the Clean Water Act. The U.S. District Court in North Dakota had already issued a preliminary injunction against the WOTUS rule back in late August, but that injunction applied only to the 13 states bringing suit.

The WOTUS rule, which was to be jointly administered and enforced by the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers, was presented as a clarification of the federal government’s regulatory authority under the Clean Water Act by defining what exactly constitutes “the waters of the United States.”

In reality, the language of the EPA rule is so vague this “clarification” could grant Washington, DC jurisdiction over any body of water anywhere. It was to apply to any water or wetland deemed to have a “significant nexus” to any navigable waterway, with the significant nexus, as described by a Wall Street Journal editorial, so widely interpreted as to include “any creek, pond or prairie pothole” and “any land within a 100-year floodplain and 1,500 feet of the high water mark or, alternatively, within the 100-year floodplain and 4,000 feet of waters within their claimed jurisdiction.” Essentially, the WOTUS rule would put EPA in charge of every piece of land occasionally containing any amount of concentrated water, practically down to the puddle level.

WOTUS would constitute a massive expansion of federal power and a usurpation of states’ authority, representing a major threat to property rights and private enterprise. Property owners, farmers, and business owners with any property fitting this spectacularly expansive definition of “waters” could face mounds of new, onerous restrictions, red tape, and costs before being allowed to alter their land in even the smallest way.

Criticism of WOTUS has been broad and far-reaching. The U.S. Chamber of Commerce, National Association of Manufacturers, American Farm Bureau Federation, and Dairy Farmers of America have all raised concerns. In fact, writes H. Sterling Burnett, managing editor of Environment & Climate News, the voluminous  number of people and organizations who have “criticized EPA’s plan as overreach in public statements or congressional and administrative testimony” includes “pesticide manufacturers, mining companies, home builders, governors, local governments, water utilities, flood control districts, the timber industry, railroads, real estate developers, golf course operators, food and beverage companies, more than 40 energy companies, and two-dozen electric power companies.”

Although the nationwide injunction is a victory for businesses, property owners, and the states, it is only a temporary victory. The injunction remains binding only during the litigation over the rule’s constitutionality. If the rule is upheld, enforcement would begin immediately.

The Sixth Circuit stated, in reference to WOTUS, “[T]he rulemaking process by which the distance limitations were adopted is facially suspect,” but concerned members of Congress should be wary of trusting the judicial branch to step in and solve their problems for them. Congress should be proactive and put forward legislation to rein in EPA.

Florida’s James Madison Institute recommends four ways Congress could take action to block the implementation of WOTUS: an appropriations bill to block or remove funding, a targeted standalone bill, amending the Clean Water Act, or a joint resolution of disapproval under the Congressional Review Act, which would automatically prevent WOTUS from taking effect and would keep EPA from implementing similar rules.

Any of these actions would enable Congress to protect private property rights and the sovereign authority of the states.

The following documents offer more information on WOTUS.

The Final Clean Water Rule
The full text of EPA’s “Waters of the United States” rule.

Legislative Pulse: Arizona Sen. Begay Discusses Regulations Harming Navajo Nation
Second-term Arizona state Sen. Carlyle Begay (D-Ganado) represents the largest state legislative district in the nation. He serves on the Education, Water, and Energy, Transportation, and Financial Institutions Committees and is chair of the Senate Ad Hoc Committee on Indian Affairs. In this interview with H. Sterling Burnett, managing editor of The Heartland Institute’s Environment & Climate News, Begay discusses the importance of WOTUS and many other regulatory issues.

“Waters of the United States”: A Case Study in Government Abuse–the-united-states-a-case-study-in-government-abuse
In this James Madison Institute study, M. Reed Hopper and Mark Miller show the WOTUS rule is so broad and vague federal regulators will be licensed to micromanage property owners who are far away from genuinely navigable waters, such as rivers, lakes, or the ocean. The rule almost amounts to federal zoning and threatens to unleash a flood of federal regulations over people’s land and their lives, from one end of the continent to the other, the authors write.

What You Need to Know About the EPA/Corps Water Rule: It’s a Power Grab and an Attack on Property Rights
In this Heritage Foundation Backgrounder, Daren Bakst highlights four things about WOTUS he says everyone should know: (1) WOTUS is extremely broad; (2) it is an attack on property rights; (3) it exceeds the broadest interpretation of Supreme Court precedent on CWA jurisdiction; and (4) it was developed through a flawed process.

Completed Maps Showing WOTUS Jurisdiction
This series of maps created for the American Farm Bureau by Geosyntec Consulting shows the dramatic expansion of EPA’s regulatory reach, stretching across wide swaths of land in the states illustrated by the maps. In Pennsylvania, for example, 99 percent of the state’s total acreage is subject to EPA scrutiny. Landowners have no reliable way of knowing which of the waters and lands within that area will be regulated, yet they must still conform all their activities to the new law.

WOTUS Decision Another Win for Americans
Writing for the Daily Signal, Katie Tubb of The Heritage Foundation breaks down the Sixth Circuit Court’s WOTUS ruling and what it means going forward.

Federal District Court Blocks Obama Water Rule
H. Sterling Burnett, a research fellow for The Heartland Institute, reports on the original federal court decision blocking the implementation of WOTUS in 13 states.

Seven Objectives for Effective and Productive Energy Legislation for 2015
Nicolas Loris of The Heritage Foundation suggests seven policies that could improve U.S. energy policy, such as open access to domestic resources, access to freely traded energy sources, the blocking and elimination of all burdensome regulations (such as WOTUS), and the removal of government-forced efficiency and renewable-fuel mandates.


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