EPA strikes blow against federal overreach
It’s not often that the statement “EPA strikes a blow against federal overreach” can be accurately used, but today is finally one of those days. Today the Environmental Protection Agency announced a proposed rule to withdraw the 2015 definition of “waters of the United States” (WOTUS) under the Clean Water Act (CWA) and reinstate the regulatory text which was in place prior. This action will reverse one of the most egregious attempts at expanding federal power undertaken by the EPA during the previous administration.
When Congress passed the CWA, the federal government was given regulatory authority over “navigable waters,” which the statute additionally defines as “waters of the United States.” While the word navigable may seem to have an obvious meaning to most Americans as bodies of water that can be navigated by watercraft, federal bureaucrats have long identified these terms as a license for a massive regulatory land grab.
The 2015 proposed rule went further than previous land grabs, however, drawing so broad a definition that nearly all water in the United States was brought under federal jurisdiction, even down to the lowliest irrigation ditch. The implications for property rights were enormous, creating a need for federal permits for basic uses of private land like agriculture or energy development. In addition to the consequences of this regulatory expansion, the EPA in multiple ways failed to correctly follow its own procedures, rode roughshod over objections from other federal agencies and failed to consult with state governments. These infirmities led the American Legislative Exchange Council to oppose the 2015 rule.
The attempt at overreach under the guise of WOTUS is not unique to the Obama administration, even if it was the most blatant offender. The Supreme Court has had to repeatedly beat back previous attempts at expanding federal jurisdiction in 2001 and in 2006. In each case, the Court could not agree on its own definition, however what it did agree on was that the EPA’s definitions went too far.
This history of attempted overreach is why it is crucial to remain vigilant as the EPA undertakes the process of drafting a replacement WOTUS definition. The tendency of the federal bureaucracy is always to expand its power, so it will take steadfast efforts to ensure that the new definition keeps the EPA in its proper federal role, leaving primary regulatory authority with the states as the CWA explicitly calls for. We wish Administrator Pruitt the best in that effort.