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New Obama EPA Water Rules Set to Drown Property Rights, Economic Growth

June 16, 2014 J,

By Justin Sykes

While much of the recent news surrounding President Obama’s EPA has centered on its far-reaching and misguided new carbon emissions rules, the White House’s green lobby henchmen also spent some time last week defending its innocuously named “Waters of the U.S.” rule, arguing the new bureaucratic directive’s only purpose is to “clarify” language in the Clean Water Act. However, it’s clear based on the bipartisan flogging the proposal was met with on Capitol Hill that the EPA’s sales job isn’t fooling anyone. Instead, critics on both sides of the ideological divide have slammed the new rules as another characteristic power grab by the agency, one that will infringe individual’s land rights and have profoundly detrimental effects on small businesses.

The EPA’s “Waters of the U.S.” proposal would change the definition of “waters of the U.S.” as used in the Clean Water Act (CWA), expanding the range of “navigable waters” that fall under the CWA’s jurisdiction. The rule would extend the EPA and Army Corps of Engineers authority to regulate private land anywhere in the U.S. that water can conceivably run, even dry creek beds, manmade ditches, and intermittent standing water. Not exactly water sources that come to mind when one thinks of shipping and navigation.

The proposal would have costly compliance and regulatory implications for U.S. small business owners, with the lion’s share of the burden falling on American farmers. The EPA continues to claim that farmers would enjoy reduced regulations under the new framework, but these claims are utterly false. By redefining the thousands of drains, ditches and low spots that litter farm lands and pastures as “navigable waters,” any discharge into those areas, be it soil or biological material, would be prohibited absent a CWA permit.

As the American Farm Bureau Federation (AFBF) explained last week in testimony before the House, the proposal would categorically regulate as “navigable waters” under the CWA:

“countless ephemeral drains, ditches and other features across the countryside that are wet only when it rains and may be miles from the nearest truly ‘navigable’ water. It would also regulate small, remote ‘wetlands’—which may be nothing more than low spots on a farm field— just because those areas happen to be adjacent to a ditch or located in a floodplain.”

In a March op-ed, EPA Administrator Gina McCarthy attempts to address the agricultural industries concerns over the proposed rule. McCarthy wrote, “The rule keeps intact existing Clean Water Act exemptions for agricultural activities that farmers count on. But it doesn’t stop there—it does more for farmers by actually expanding those exemptions.” McCarthy’s claims however are blatantly untrue.

The fact is when the CWA was enacted in 1971, Congress realized the potentially detrimental impact the legislation could have on the farming industry, and as such carved out specific exemptions for farmers. The exemptions cover “normal farming and ranching” activities, construction of farm and stock ponds, and storm water discharge.  However, the EPA’s proposal expanding jurisdiction over any “ditches” and “low spots” on farmer’s lands capable of accumulating water completely undermines Congress’s intent to protect farmers by rendering the exemptions meaningless.

Additionally, the EPA “conveniently” established the original 90-day comment period for the rule to directly coincide with the planting and growing season, making it almost impossible for farmers to voice their concerns over the proposed rule’s effects on their livelihoods.

The EPA also dubiously underestimated the compliance costs of the proposed rule by relying on permitting data almost 20 years old. The EPA’s estimates didn’t account for inflation or the costs of avoidance or delay. The EPA found, for example, that the costs of individual section 404 permits, which are required for the discharge of dredged or fill material, would be “$43,687 plus $11,797 per acre” and nationwide permit costs at “$16,869 plus $9,285 per acre” impacted. However if the costs were updated to 2014 dollars and accounted for inflation, the actual individual section 404 permit cost would be a whopping “$62,166 plus $16,787 per acre” and nationwide permits would be “$24,000 plus $13,312 per acre.”  How many family farmers or small businesses can absorb those kinds of costs?

Based on the EPA’s efforts to knowingly mask the true effects of the proposed “Waters of the U.S” rule, it’s clear this is just another massive power grab attempt characteristic of McCarthy’s EPA.

Not only is the agency effectively undermining Congress, worst of all it’s misrepresenting the proposal to the American people. If the EPA is allowed to expand its power to ditches and bone dry creek beds on private lands, it’s unclear where the power grab will end. Will the EPA soon seek to regulate puddles on your property, baby pools, standing water in the local Wal-Mart parking lot, or your grandmother’s bird bath?

One thing is clear, if the “Waters of the U.S.” proposal passes, it will not only infringe the property rights of millions of private citizens, but will set a dangerous precedent for government regulation of private lands – a precedent that would make it quite difficult to sail back from.

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