EnergyFactor By ExxonMobil | Pespectives has a new home

The water land grab

There’s a certain irony that the Environmental Protection Agency issued its “Waters of the U.S.” final rule the same week the Supreme Court admonished the agency for overstepping its bounds in how it crafts its regulations.

07012015_Feature_v3The EPA, along with the U.S. Army Corps of Engineers, says it wants to clarify ambiguities about the waterways the government is permitted to regulate under the Clean Water Act.

That’s a laudable goal—and it’s a great pity that the final rule does nothing of the sort.

Instead it introduces new ambiguities, with tortured definitions under which the federal government, in effect, gives itself the right to regulate virtually any wetland, pond, tributary, or drainage ditch.

That amounts to a massive federal land grab which could have negative implications for everything from farming to real estate development to transportation to energy production. It’s a body blow the economy does not need. Worse, it serves to undermine the system of private property rights at the foundation of America’s economic development.

I wrote on this topic last October when the rule was merely in proposed form, suggesting it went too far. In the eight months since then, federal authorities evidently decided it did not go far enough: The final rule – which is scheduled to become law on August 28, 60 days after being published in the Federal Register – is even more ambitious than the proposed rule, as this comparison put together by the American Farm Bureau Federation shows.

The Farm Bureau has done some of the best analysis of Washington’s attempt to expand its reach over Americans’ lives and property. They note that under the new rule, “the definition of ‘tributary’ has been broadened to include landscape features that may not even be visible to the human eye, or that existed historically but are no longer present.”

That should trouble anyone who thinks that laws should mean what they say, and it’s hard to see how areas that are dry most – if not all – of the time should be treated the same as true “navigable waters.”

At last count, 27 states had joined various lawsuits challenging the final rule.

South Dakota Attorney General Marty Jackley summed up his opposition by saying, “The EPA is creating uncertainty for our agriculture and business community that needs to have fairness and a degree of common sense in federal regulation.”

Creating uncertainty would seem to contradict EPA Administrator Gina McCarthy’s claims that the rule aims to provide clarity.

What is clear, now that the final rule is out, is that EPA is biting off more than it should, to the detriment of America’s economic recovery.

 

 


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