Drowning our property rights: EPA's misuse of the Clean Water Act

In several different ways, President Obama's Environmental Protection Agency (EPA) is using and abusing the Clean Water Act to improperly block economic development projects and take away Americans' property rights.

In one recent example, the EPA made plans to block a permit for a mining project before the project had even applied for one.

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After intense pressure from and collusion with Washington D.C. and New York-based environmental lobbyists, the agency proposed to block an Alaska mining company from receiving a federal Clean Water Act permit for a project known as Pebble Mine.  But the company had never even applied for a permit.  In fact, EPA’s proposed Clean Water Act veto was based only on speculation of what mining on private land might look like, not on an actual mining plan.

In other words, EPA manipulated its own bureaucracy in order to control potential and future projects of American businesses on private property.  It did so to proactively discourage investment in the venture, so it could never begin to get off the ground.

What could be more questionable than a prospective veto?  How about a retroactive one, years after the permits have been issued and the activity greenlighted.

In 2011, EPA revoked a Clean Water Act permit for a West Virginia coal company that had been issued four years earlier. There was no question over whether the business had faithfully complied with the permit’s terms.  And nothing material had changed.  The EPA simply reversed itself after four years of company planning, investment and activity, determining out of the blue that the company’s mining, fully authorized under federal law, now presented an “unacceptable adverse effect” on the environment. The EPA failed to provide details or the science used to justify the alleged “adverse effects.”  The company was forced to shut down and hundreds of potential jobs were shuttered.

A third head-scratching example involves the EPA holding landowners accountable for the amount of minerals and sediment that enters local water bodies not merely from their activity but from rain.  

Specifically, the EPA’s Chesapeake Bay “Total Maximum Daily Load” is so extreme that it has forced several counties in Maryland to impose a rain tax on landowners who have bodies of water that the EPA says doesn’t meet their standard. Have you ever heard of a rain tax? This particular standard has led to lawsuits against EPA over the issue.  If the courts fail to overturn this abuse of the Clean Water Act, there will be little to stop EPA from having de facto land use authority, displacing the proper role of local governments across the country.

Because of this type of arbitrary, aggressive action by the EPA, the American business community is worried about future investment and expansion, and justifiably so. Companies considering a natural resource project in the United States must now ask themselves whether they can risk navigating the costly and time-consuming Clean Water Act permit process, only to have EPA determine at some unknown date that the project must be abandoned.

And if all of this weren't enough, then there is the granddaddy of EPA abuse of the Clean Water Act -- its proposed and looming “Waters of the United States” rule.  Even though the Clean Water Act was passed into law by Congress in 1972 and Congress has not passed any recent revision of it, the Obama Administration has decided it's time for a drastic rewrite.  So on its own, with no provocation or input from Congress, it is proposing new rules that would dramatically expand the reach or jurisdiction of the law.

Up until now, the Clean Water Act has applied to navigable water bodies.  But under this drastic administrative rewrite, it would govern virtually any activity impacting an area where water flows.  That means federal government permits would be required for all sorts of routine activities.

This has profound implications for all Americans, not just large mining and other businesses.  It means that installing a playground in a backyard or extending a driveway may well require expensive, cumbersome federal government permitting.  And that means super-expensive and protracted litigation could be involved too.

I'm fighting this regulatory onslaught on many fronts.  And I have significant allies in the fight, including a few Democrats.  For instance, Sen. Joe ManchinJoe ManchinOvernight Finance: Trump threatens NAFTA withdrawal | Senate poised for crucial Puerto Rico vote | Ryan calls for UK trade deal | Senate Dems block Zika funding deal Overnight Energy: Volkswagen reaches .7B settlement over emissions Senators rally for coal miner pension fix MORE (D-W.Va.) has joined me in introducing the bipartisan Regulatory Fairness Act of 2014.  This legislation would essentially prevent EPA from preemptively or retroactively vetoing Clean Water Act permits without just cause.

But we need a new U.S. Senate majority to really push back on this overreach.  This should be a central rallying cry of this fall's election.  We must stop Obama's EPA from continuing to limit our freedoms and block important job projects through abusive, arbitrary action that goes well beyond its proper authority.

Vitter is Louisiana's junior senator, serving since 2005. He sits on the Armed Services; the Banking, Housing and Urban Affairs; the Commerce, Science and Transportation; the Environment and Public Works; and the Small Business and Entrepreneurship committees.