Why every property owner should fear EPA's "waters of the United States" rule

FILE: June 2, 2014: EPA Administrator Gina McCarthy at a news conference in Washington, D.C. (REUTERS)

The Environmental Protection Agency released its final rule last week defining “waters of the United States” (WOTUS), a measure that hugely expands the ability of this aggressive agency to disregard the conservation efforts of American states and interfere with the daily lives and property  of the American people.

Not only does this final rule break promises EPA has made, but it claims federal powers even beyond what EPA originally proposed a year ago.  This will drastically affect—for the worse-- the ability of many Americans to use and enjoy their property.

EPA claims that it now has the right to regulate any water in a 100-year floodplain of a navigable water, any water that is 4,000 feet from a tributary, and any prairie pothole, pool or wetland that EPA has declared a “regional water treasure,” if it can identify a “significant nexus” with a navigable water.

EPA defines “significant nexus” so broadly that this test can be met in almost every instance.  If EPA shows that a pond or wetland holds water – EPA can regulate it.  If EPA shows that a pond or wetland seeps into the ground to an aquifer that feeds a stream or river miles away – EPA can regulate it. And, if EPA can show that a pond or wetland provides “life cycle dependent aquatic habitat for a species” that spends part of its time in a navigable water - EPA can regulate it.  The “water” that EPA can regulate does not even have to be wet.  It is also defined by “chemical, physical, and biological indicators.”

This will drastically affect—for the worse-- the ability of many Americans to use and enjoy their property.

This power grab defies the 2001 limits placed on EPA and the U.S. Army Corps of Engineers by the Supreme Court, which ruled that the mere fact a pond is used by “approximately 121 bird species…, including several known to depend upon aquatic environments for a significant portion of their life requirements” does not create federal jurisdiction.

This also is a radical departure from the kind of public-private conservation efforts that have been a great American contribution to environmentalism.  For example, the U.S.  Fish and Wildlife Service acknowledges that prairie “potholes”—marshy glacial depressions located primarily in the northern Mid-West-- are not federally regulated, so the agency works with farmers throughout the region on cooperative conservation measures. But under the EPA’s new final rule, federal regulators can throw cooperation out the window and simply tell farmers when and where they can farm.

The Senate Committee on Environment and Public Works has conducted five hearings on EPA’s WOTUS rule.  In a February hearing, both EPA Administrator Gina McCarthy and Assistant Secretary for the Army for Civil Works Jo-Ellen Darcy admitted the proposed WOTUS rule was flawed, inconsistent, and ambiguous and promised to fix it.

Some fix.  Many of those promises were simply abandoned.  For example, Administrator McCarthy told the National Farmers’ Union that irrigation ditches were of no interest to the agency.  But, because irrigation water is not “ephemeral” or “intermittent”—just about the only terms limiting the new scope of federal water regulation over ditches—it is  now vulnerable to EPA regulation.

EPA also promised to clarify an important distinction between regulated tributaries of navigable water and exempt water-induced erosion features.   Erosion channels are created when it rains.  But, according to EPA, the term tributary also includes streams that hold water only when it rains.

The final rule does not provide a clear way to distinguish the two.  Instead, EPA continues to use the nebulous wording of “bed, bank, and ordinary high water mark” to define a tributary.  This is a very subjective test.  In a May hearing, we learned that EPA brought a criminal action against a landowner claiming that the ordinary high water mark that defines the width of a stream is based on flooding, not ordinary stream flows.  In 2014, the United States District Court for the Central District of California found in favor of the landowner, but the Technical Support Document for the final rule relies on the same Corps guidance that EPA used to prosecute that case.

In other words, EPA is not even listening to what the courts have already told them about reining in its arbitrary grab for authority.

The EPA  final rule in fact further confuses the definition of a tributary by asserting that EPA and the Corps can identify them by using remote sensing technology, even though the Corps’ own internal  guidance says this is not appropriate and the U.S. Geological Survey warns that some of these tools will find channels everywhere, most of which will be erosion features, not waterways.

With respect to promises to address ponds, ditches, and stormwater and wastewater management systems in the final rule, what the agencies give with one hand, they can take with the other.  The final rule exemptions for these features are limited to those created on “dry land.”  However, the agencies declined to define “dry land” and will decide what that means during implementation – creating significant uncertainty, particularly for water management features that were built long ago.

The huge expansion in federal authority under the final rule means that it is more important than ever for Congress to act.  Last month, a bipartisan group of Senators unveiled S. 1140, the Federal Water Quality Protection Act, to rein in EPA’s attempt to use the Clean Water Act to expand federal control while protecting those waters that need to be protected to keep pollution from reaching traditional navigable waters.

I intend to move S. 1140 through the EPW Committee as soon as possible this summer.  I will not allow EPA to advance its agenda on controlling private lands, and will work with my colleagues for a veto proof majority in support of this legislation.

Americans also need to make their voices heard, if they want to maintain their right to control their fields, farms, and ranches-- and possibly their back yards.