EPA Now Defines What Constitutes A 'Waters of the United States'

A "power grab and an attack on property rights."

The Environmental Protection Agency was happy to announce that they, along with the Army Corps of Engineers, have reached a final rule that would once and for all decide the fate of any body of water around the country and protect it as a "waters of the United States."

Under this update to the Clean Water Act (CWA) and with public health in mind, the EPA can now fully regulate and control any water on any property they determine to drain or flow to another body of water used for public consumption or use. From the ruling:

This final rule interprets the CWA to cover those waters that require protection in order to restore and maintain the chemical, physical, or biological integrity of traditional navigable waters, interstate waters, and the territorial seas. This interpretation is based not only on legal precedent and the best available peer-reviewed science, but also on the agencies’ technical expertise and extensive experience in implementing the CWA over the past four decades. The rule will clarify and simplify implementation of the CWA consistent with its purposes through clearer definitions and increased use of bright-line boundaries to establish waters that are jurisdictional by rule and limit the need for case-specific analysis. The agencies emphasize that, while the CWA establishes permitting requirements for covered waters to ensure protection of water quality, these requirements only apply with respect to discharges of pollutants to the covered water. In the absence of a discharge of a pollutant, the CWA does not impose permitting restrictions on the use of such water.

The EPA defines rivers, streams, ditches, wetlands, ponds, lakes, etc. as "water" or "waters." This inclusion of any waterway, natural or man-made, has already caused trouble for property owners and farmers. Last year, a Wyoming man faced EPA fines of $75,000 per day because the federal agency deemed his private pond, built by his family for their horses, a violation of the CWA. Farmers have been so concerned over the ever changing definition of waterways that they launched a Ditch the Rule campaign to bring attention to what they view as a power grab. Without a check of the EPA's ruling, even water used on lawns could be deemed a "waters of the United States" if the runoff could be determined to affect another water source.

Because of this, the EPA has attempted to clarify the rule and ensure that most ditches or man-made watering holes will be left alone (as long as they don't pollute other waters), but they also retained the final authority in determining any violations.

The Heritage Foundation labeled the new ruling a "power grab and an attack on property rights." Their interpretation of the ruling is that it is still "extremely broad," despite the EPA's attempt to issue this latest clarification. The article's writer Daren Bakst suggests Congress be the ones to define "Waters of the United States" rather than allowing the EPA and Army Corps to "use any ambiguities in the CWA to acquire power not authorized by law."

"Finally, when developing a definition," Bakst continues, "Congress should respect private-property rights. This fundamental right should not be trampled by an overreaching federal government seeking to regulate almost any water in the country."

An Oil & Gas Journal report quotes vice-president of energy resources and policy for the National Association of Manufacturers, Ross Eisenberg's reaction to the new "clarified" ruling:

“As of today, if you have a stream on your property that only flows when it rains, you have a ‘Water of the United States.' If you have a pond that happens to be near another covered water, you have a ‘Water of the United States.’ If you have certain types of ditches, you have ‘Waters of the United States’ on your property. This all adds up to increased regulatory uncertainty, permitting costs, delays and even litigation, not to mention a giant new set of hurdles standing in the way of construction."

In a piece for The Daily Signal, Bakst exposed the "shocking actions" taken by the EPA in gaining support for its new water rule. The ruling states that the EPA conducted nationwide meetings in the hundreds with farmers, companies, and businesses, and read through "1 million public comments" which they said a "substantial majority" agreed with them on the proposals. But, according to Bakst, the ways in which they collected this feedback has been declared by some as "controversial" and perhaps "illegal."

He writes:

For example, the agency used a Thunderclap campaign to drum up support using social media. “We hope you’ll support our clean water proposal. To help you do that, and get your friends to also voice their support, we’re using a new tool called Thunderclap; it’s like a virtual flash mob.” The message was sent to about 1.8 million people.

The Environmental Protection Agency also developed a video to promote the rule, asking the question “Do you choose clean water?” As if critics of the rule want dirty water.

As seen through these examples, the Environmental Protection Agency has been acting more like an advocacy group than a federal agency that is supposed to welcome comments from all sides. It has tried to influence the comments that were received. When the agency uses its massive resources to get support for its rule, it shouldn’t be a surprise when it receives comments that support the rule.

Of course the EPA doesn't see it this way. They posted the following video to Twitter in celebration of their new ruling:

 

 

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