On WOTUS, EPA is taking the law into its own hands

On the tail end of a long holiday weekend after members of Congress had left Washington to return home to their districts, the Environmental Protection Agency (EPA) and Army Corps of Engineers announced the sweeping final “Waters of the United States” (WOTUS) rule, which defines which streams, rivers, ponds, wetlands, ditches, and waterways are subject to the regulations of the Clean Water Act. The rule massively broadens the scope of the agency's power.

The EPA's announcement came just weeks after a bipartisan coalition in the House passed the Regulatory Integrity Protection Act (H.R. 1732), which required the EPA to withdraw the rule. Numerous governors and state attorney generals also spoke out against the rule as well as agriculture organizations and trade associations.

But that didn’t stop the EPA.

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The EPA has a long history of dramatically overstepping its legal authority, but this latest attempt is unprecedented even for the power-hungry federal agency. The new EPA rule is nothing short of a tyrannical federal power grab that would unnecessarily burden farmers, businesses, private property owners, and state and local governments. Under the rule, virtually every river, stream, and creek in the U.S. would be subject to the regulations of the Clean Water Act and come under the oversight of federal bureaucrats. 

For decades, the EPA has attempted to expand its jurisdiction under the Clean Water Act, and, thus far, the Supreme Court has blocked its efforts. In both 2001 and 2006 a plurality of the Court ruled against the EPA’s interpretation of WOTUS.  In 2006, the Supreme Court found that the Clean Water Act applies to streams and wetlands that connect to navigable waters, but did not define what constitutes a “connection.”

Now, the EPA is exploiting the ambiguity in the Supreme Court’s ruling to extend its powers far beyond the scope Congress intended. If one takes the time to weed through the nearly 300 pages of regulations, definitions, and descriptions released by the EPA, they’ll find that waters nearly a mile (4,000 feet) away from the high water mark of a navigable waterway could be subject to regulations. Would a reasonable definition really call that a “connection?”

Under the EPA’s absurd new WOTUS rule, the agency would have the ability to regulate waters on private lands down to ditches, potholes and puddles.  EPA Administrator Gina McCarthyRegina (Gina) McCarthy Trump ignores science at our peril Green groups push for environmental protections in stimulus package Overnight Energy: Trump budget slashes EPA funding | International hunting council disbands amid lawsuit | Bill targets single-use plastics MORE told reporters that the rule will “make it easier to identify protected waters.” Of course it would make it easier— it would make nearly all waters in the U.S. EPA-governed waters.

In his concurring opinion for Sackett v. EPA (2012), Justice Samuel Alito recommended Congress define what is meant by the phrase “the waters of the United States” in the Clean Water Act. Alito wrote, “the words themselves are hopelessly indeterminate. Unsurprisingly, the EPA and the Army Corps of Engineers interpreted the phrase as an essentially limitless grant of authority.”

Adding insult to injury, the EPA allegedly engaged in a campaign to drown out voices of opposition, as reported by the New York Times. In doing so, the EPA disregarded thousands of comments made by those who would directly be impacted: farmers, ranchers, and small businesses. 

The EPA has bypassed Congress , the judicial branch, and ultimately, the American people. If a federal agency is allowed to unilaterally expand their scope of regulatory jurisdiction, then the role of Congress as the legislating branch of government might as well be rendered useless. I am afraid that day is rapidly approaching, but it will not be met with silence or complacency. Every American wants clean drinking water and to protect our nation’s waterways. However, the means by which we accomplish things cannot be through the unilateral issuance of sweeping, overly burdensome regulations that serve to harm the very people that our laws are originally intended to protect.

Meadows has represented North Carolina’s 11th Congressional District since 2013. He is chairman of the Oversight and Government Reform Committee’s Subcommittee on Government Operations, which has oversight jurisdiction over federal agencies, including the EPA. He also sits on the Foreign Affairs and the Transportation committees.