The Environmental Protection Agency has come up with a way to execute one of the biggest land grabs by the federal government ever perpetrated on the American public. On Tuesday, the EPA proposed a change to the Clean Water Act so that the EPA would have the power to regulate temporary wetlands and waterways.
The land grab engendered tremendous concern from members of the GOP trying to protect private property; they noted that the EPA would gain power over seasonal ponds, streams and ditches.
Louisiana Sen. David Vitter, the top Republican on the Senate Environment and Public Works Committee, charged, “The … rule may be one of the most significant private property grabs in U.S. history.” He stated that the EPA was “picking and choosing” its science while trying to “take another step toward outright permitting authority over virtually any wet area in the country.” Vitter also noted that if the EPA gets its way, more environmental groups could sue private property owners.
Sen. Lisa Murkowski, R-Alaska, was also furious, saying that the EPA grab “could result in serious collateral damage to our economy … [I]t appears that the EPA is seeking to dramatically expand its jurisdictional reach under the Clean Water Act.” She added of her home state, “If EPA is not careful, this rule could effectively give the federal government control of nearly all of our state — and prove to be a showstopper for both traditional access and new development.”
The EPA proposal to more widely implement pollution regulations would affect “intermittent and ephemeral streams and wetlands” whose water comes from wet seasons or rains but are temporary.
The crux of the matter is what defines the “waters of the United States.” The Supreme Court has ruled that the federal government could only touch waters that are “relatively” permanent or continuously flowing and large, such as “oceans, rivers, streams and lakes.” The EPA and the Army Corps of Engineers defended the new rules by asserting on Tuesday that determining Clean Water Act protection had become “confusing and complex.” The agencies jointly stated, “For nearly a decade, members of Congress, state and local officials, industry, agriculture, environmental groups, and the public asked for a rulemaking to provide clarity.” The agencies also insisted that the waters newly targeted “form the foundation of the nation’s water resources” and protested that the federal government would not truly be extending their reach.
EPA Administrator Gina McCarthy stated, “To be clear, our proposal does not add to or expand the scope of the waters historically protected under the Clean Water Act.” The EPA also asserted that roughly 60 percent of American “stream miles” may only flow seasonally or flow after a significant rain, but those “stream miles” do have a “considerable impact” on downstream waters. The EPA noted that roughly 117 million Americans, drink water that comes from such streams.
The EPA proposal now faces a 90-day comment period; federal officials have pontificated that they will consult the public about their reaction to the proposed changes before they “shape a final rule.”