The feds have launched a new power grab, and it’s coming at the expense of property rights.
The Environmental Protection Agency and the Army Corps of Engineers have proposed a new rule to define “waters of the United States.” This definition is supposed to clarify what “waters” are covered under the Clean Water Act and therefore what these two agencies can regulate.
Most people would consider a water body to be a river, a lake, maybe even a pond. But the feds are casting their nets much wider than that. Their proposal could cover almost any type of water. Almost all ditches, including man-made ditches, could be regulated. Depressions in land that only sometimes have water in them could be deemed a tributary and covered under the rule, even if the depression is bone-dry almost every day of the year. The sheer overreach of the proposed rule is breathtaking.
Under the Clean Water Act, property owners are often required to obtain costly and time-consuming permits if engaging in activities that affect jurisdictional waters. We’re not talking toxic waste disposal being required to trigger the need for a permit. The statute would even prohibit actions that cause absolutely no environmental harm. For example, someone might need a permit for kicking some sand into a jurisdictional water.
Common activities, from farming to home building, could require a permit. Individuals who want to use their property for ordinary, everyday uses could be forced to get a permit. Sackett v. EPA offers one egregious example of overzealous regulatory enforcement. In this 2012 Supreme Court case, the EPA sought the power to impose fines of $75,000 per day on a couple for placing gravel on virtually dry land to build a home in a built-out subdivision. This proposed rule will likely lead to even more Sackett-type abuses of regulatory power.
