Be on alert for new water rule

By Daren Bakst and Don Parrish

The Heritage Foundation

Property owners need to be on the alert. Thanks to a new federal water rule, they will need to watch how they use their property.

The Environmental Protection Agency and the U.S. Army Corps of Engineers’ new rule seeks to define what types of water “bodies” the agencies can regulate under the Clean Water Act. It tries to regulate almost any water possible, even what most people would consider to be land. For example, a man-made ditch could be a covered water body. Land could be a covered “stream” if it holds water after heavy rain.

This new rule will force property owners to secure far more permits to engage in ordinary activities such as farming, assuming they can even afford the permits in the first place. From the farmer who wants to build a fence to a county that wants to protect public safety through critical infrastructure, the rule could create serious obstacles.

Simply moving dirt that then falls into a water body, even under existing law, could trigger the need for a permit. There doesn’t even have to be environmental harm. Imagine how many permits could be required when almost everything looks like a water in the eyes of the EPA and Corps under this rule.

There has been longstanding confusion regarding what types of water bodies are covered under the Clean Water Act. However, instead of developing a clear bright-line rule that is consistent with the Clean Water Act, the EPA and Corps have tried to improperly expand their powers. In little more than a decade, the U.S. Supreme Court has twice struck down the agencies’ power grabs. This new rule is worse than what they tried before and is so vague and subjective that many property owners may not even know that they could be violating the law.

Social media campaigns

Opposition to this rule isn’t the same as opposing clean water, like the EPA has tried to suggest in inappropriate and controversial social media campaigns to gin up support for the rule. Everybody wants clean water. Excessive federal government intervention shouldn’t be confused with sound environmental policy.

Ironically, the new rule is bad for the environment. The Clean Water Act expressly says that states are to take the lead when it comes to implementing the law. The EPA and Corps, though, have simply decided that bureaucrats in Washington don’t need to follow the Clean Water Act and are smarter than state and local officials.

There’s a reason why states should play a leading role. They know their natural resources better than Washington and how best to achieve tailored solutions to specific challenges.

Not surprisingly, there’s bipartisan opposition to this new rule (for various reasons). Attorneys general and agencies from at least 31 states are suing the federal government over the rule.

Even environmental groups are suing. The Corps itself, as late as a couple of weeks before the rule was released, was savagely criticizing the rule and documents supporting its findings.

The 6th U.S. Circuit Court of Appeals has issued a stay that blocks implementation of the rule on a nationwide basis. However, this stay could be lifted. The House and Senate have passed different legislation to repeal the rule, but they need to pass the same bill to get legislation to the president.

While President Barack Obama may veto the bill, Congress needs to do whatever it can. In the omnibus appropriations bill for fiscal year 2016, Congress can also withhold any funds that would be used to implement the rule.

If the rule is repealed, it puts an end to this egregious rule, not to the need for clarity regarding the scope of the Clean Water Act. Congress should define what waters are to be covered and stop passing the buck to unaccountable government officials. There would also be nothing stopping the agencies from starting over to get things right.

Daren Bakst is a research fellow specializing in agricultural policy in The Heritage Foundation’s Roe Institute for Economic Policy Studies. Don Parrish is senior director for congressional relations at the American Farm Bureau Federation.