90 Miles From Tyranny

Friday, July 25, 2014

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Property Rights at Stake in EPA’s Water Power Grab

Thanks to the federal government, it soon may become far more

difficult to use and enjoy private property. The Environmental Protection Agency and the Army Corps of Engineers want to make a water—and land—grab that should scare everyone.

Under the Clean Water Act, the federal government has jurisdiction over “navigable waters,” which the statute further defines as “the waters of the United States, including the territorial seas.” Property owners often need to get permits if waters covered under the law will be impacted. Therefore, a critical question is what types of “waters” are covered under the CWA. That’s what the EPA and Corps seek to address with a new proposed rule that would define “the waters of the United States.” As expected, the EPA and the Corps are seeking to expand their authority to cover waters never imagined when the Clean Water Act was passed in 1972.

For example, the new proposed rule would regulate all ditches, except in narrow circumstances. This even includes man-made ditches. The rule would apply to tributaries that have ephemeral flow. This would include depressions in land that are dry most of the year except when there’s heavy rain.

There’s widespread opposition to the proposed rule. Farmers and ranchers are concerned that the rule could affect normal agricultural practices. Homebuilders could face additional...