The Environmental Protection Agency recently issued a new definition of the "Water of the United States” (WOTUS) rule, which specifies the EPA’s jurisdiction over public rivers, streams and wetlands under the Clean Water Act. The new WOTUS rule dramatically expands the EPA’s influence. It’s not particularly surprising that any agency would be willing to grant itself additional power, but what makes this situation different is that the EPA is doing so in direct opposition to the wishes of two out of the three branches of the federal government.
This version of the WOTUS rule was limited by two separate Supreme Court decisions in 2001 and 2006, which found that the Clean Water Act applied only to wetlands with a connection to navigable waters. Rather than accept that limitation, the EPA has strained logic to expand how a “connection to navigable waters” can be interpreted. Its new rule determines that any waters within 4,000 feet of a navigable waterway constitutes just such a connection, which, a little too conveniently, puts almost the entirety of all waters in the country directly under the EPA’s jurisdiction.
Having eluded the judiciary’s objections to this plan by means of creative wordplay, the EPA has since encountered the objections of the legislative branch, too. Just weeks ago, a bipartisan vote in the U.S. House of Representatives passed the Regulatory Integrity Protection Act (HR1732), which specifically requires that the EPA abandon this interpretation. A vote in the Senate would probably yield similar results, but the requirement to limit WOTUS would require the president’s signature, and it’s unlikely to get it. So the EPA has simply barreled ahead and unilaterally decided to grant itself a great deal of additional power regardless of legislative and judicial opinion.
That’s not how government is supposed to work.
The EPA is not supposed to make the law, but, rather, to enforce it. Its new rule clearly runs contrary to congressional intent, but EPA leadership seems uninterested in recognizing the legislative branch’s legitimate oversight role granted by the Constitution.
But the hard truth here is that this isn’t just an academic exercise in understanding checks and balances. This new rule will have tremendously negative real-world consequences for private citizens and local governments who will suddenly find themselves inundated with new, costly federal regulations for resources they have, on the whole, successfully managed without interference from Washington. Utah Sen. Orrin Hatch pointed out that this would even extend the EPA’s hand into “small ponds and irrigation ditches on Utah's family farms and ranches.”
That represents significant overreach on the part of the administration, which is why this rule ought to be significantly limited or scrapped altogether.