Last week, the U.S. Environmental Protection Agency issued a new rule—in conjunction with the Army Corps of Engineers—that radically expands federal regulatory powers over private property throughout the nation. The “Waters of the United States” rule seeks to redefine key jurisdictional terms in the Clean Water Act, and in a manner that the National Federation of Independent Business and other groups contend results in an illegal expansion of their powers.
Of course the agency has sought to minimize the perception that it’s expanding the scope of its regulatory powers—insisting that the rule only clarifies powers that it’s had since the Clean Water Act was enacted in 1977. But, at the same time, the agency speaks from the other corner of its mouth in pronouncing that this rule will have sweeping effects. EPA Administrator Gina McCarthy issued a statement when unveiling the new rule on the banks of the Anacostia River in Washington:
“The rivers and lakes we love, we just can’t let them get polluted. We have to pay attention to these streams and wetlands that feed into these waterways because if they’re not clean this will not be either. And one in three Americans get drinking water from streams and wetlands that lack clear protections—up ‘till yesterday!”
The Obama Administration echoed that talking point on the White House Blog on May 27, 2015. But in that very post the Administration continues to speak from both sides of its mouth about the rule—both arguing that it “only protects waters historically covered under the Clean Water Act,” while at the same time asserting that, until this rule came down, a third of the nation pulled drinking water from streams that were not clearly covered by federal regulation. Clearly both cannot be true. Either the new rule conforms with the historic powers authorized to the agency, or it constitutes an expansion of regulatory authority. Of course we maintain that the rule is indeed an expansion of federal power—one that will adversely impact many thousands of small business property owners.
Remarkably the White House Blog maintains that its new rule “doesn’t interfere with private property rights, and [that] it covers only water—not land use.” Not so. The new rule severely affects private property rights. The rule expands Clean Water Act jurisdiction to cover essentially any land over which water occasionally flows, and would cover any land that becomes wet during certain seasons if there is any tenuous connection to a stream, slough, marsh or bog that eventually flows into a river. And that means that landowners will be unable to make any economically beneficial use of affected portions of their properties without a very costly federal permit. Affected landowners must now spend upwards of $270,000 for a permit to do any dredging, filling, grading, landscaping or any construction on portions of their land that are new deemed jurisdictional wetlands under the new rule.
NFIB has raised objections to the rule on several grounds. First, the Rule contravenes Supreme Court precedent, which holds that there are constitutional limits on EPA’s regulatory powers under the Clean Water Act. Second, NFIB has voiced strong opposition to the rule on behalf of affected small business owners, but the agency has refused to take small business concerns seriously. And finally, EPA’s suggestion that the rule brings “clarity” to the Clean Water Act’s jurisdictional provisions is—with all due respect—a load of malarkey. Yes, in some cases the new rule creates “clarity” by offering categorical rules favoring federal regulation of private property; however, for many affected landowners the rule does nothing to bring clarity. They will still need to hire costly engineering firms and environmental experts to determine whether their lands contain jurisdictional wetlands. And if they should build—or make some other use of their land—on the mistaken assumption that the property is not subject to regulation, they face shock-and-awe penalties of $37,500 per day.
For more on what NFIB Legal Center and NFIB are doing to defend landowners against EPA’s expansionary regulations, we’ve set up a special page explaining the issue in greater detail. Affected small business owners are also encouraged to share their story about how this rule will impact their operations. And for further insights, we would refer our readers to Pacific Legal Foundation’s recent article, which further indicts the Administration for spinning this rule in a deceptive manner to the public: Lawless Administration adopts deceptive Clean Water Act rule.