EPA has released their regulatory nuclear bomb—The Clean Water Rule

By Debra Tash

When the Clean Water Act passed in 1972 did Congress intend to give a federal agency carte blanche regulatory power?   Keep in mind that kind of regulatory power is in effect law making.  No other federal body has the constitutional authority to make law except Congress.  However that is exactly what has been happening with the EPA for decades, and now its power has expanded exponentially with its new Clean Water Rule.

From the EPA’s  own press release today:

"· Clearly defines and protects tributaries that impact the health of downstream waters. The Clean Water Act protects navigable waterways and their tributaries. The rule says that a tributary must show physical features of flowing water – a bed, bank, and ordinary high water mark – to warrant protection. The rule provides protection for headwaters that have these features and science shows can have a significant connection to downstream waters.
· Provides certainty in how far safeguards extend to nearby waters. The rule protects waters that are next to rivers and lakes and their tributaries because science shows that they impact downstream waters. The rule sets boundaries on covering nearby waters for the first time that are physical and measurable.
· Protects the nation’s regional water treasures. Science shows that specific water features can function like a system and impact the health of downstream waters. The rule protects prairie potholes, Carolina and Delmarva bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands when they impact downstream waters.
· Focuses on streams, not ditches. The rule limits protection to ditches that are constructed out of streams or function like streams and can carry pollution downstream. So ditches that are not constructed in streams and that flow only when it rains are not covered.

· Maintains the status of waters within Municipal Separate Storm Sewer Systems. The rule does not change how those waters are treated and encourages the use of green infrastructure.

· Reduces the use of case-specific analysis of waters. Previously, almost any water could be put through a lengthy case-specific analysis, even if it would not be subject to the Clean Water Act. The rule significantly limits the use of case-specific analysis by creating clarity and certainty on protected waters and limiting the number of similarly situated water features.”

Sounds safe enough.  However even in the above wording, and under the agency’s what the Rule Will Not Do Page, there are vagaries.  Look at what was stated in their press release– the EPA will only protect “ditches that are constructed out of streams.” Like, perhaps, ditches that serve as part of an agricultural irrigation system?  The agency claims they won’t be regulating agricultural irrigation.  But soon enough they will be claiming that irrigation runoff from a farm using pesticides  “can carry pollution downstream.”  They have just given their agency the power to fine farmers for what they may deem as unsafe practices and enforce mitigation measures, even when those practices are proven operating procedures that have not harmed the environment.

Irrigation Ditch in California

And what of the ephemeral “water treasures” mentioned above as well?  Those “water treasures” are transitory in nature and, for some, do not even contain water most of the year.  Those will be regulated, too.  “The rule protects prairie potholes, Carolina and Delmarva bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands when they impact downstream waters.”  All water eventually makes its way downstream. 

Western vernal pools in Murrieta

Prairie Pothole

The Clean Water Act of 1972 contained one key word that the EPA has now managed to wiggle around: “navigable”.  The act protected navigable waterways, like lakes, rivers, not prairie potholes.

In their own words they are ushering in a brave new world. “Today’s rule marks the beginning of a new era in the history of the Clean Water Act,” said Assistant Secretary for the Army (Civil Works) Jo-Ellen Darcy.

So be forewarned:  When a bloated government agency goes about rule making they are, indeed, enacting law.  And though they claim this new arrow in their regulatory quiver will not harm property rights it will, in fact, lead to the loss of them. 

We hope to have a more detailed analysis of this rule.  In the meantime you can read the 297 page document for yourself: HERE

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Debra Tash is Editor-in-Chief of Citizensjournal.us, past president for Citizens Alliance for Property Rights, business executive and award-winning author, residing in Somis.

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