EPA Seeks to Expand Regulatory Authority Under Clean Water Act

The Environmental Protection Agency (EPA) proposed a rule on Tuesday, March 25, that would significantly expand the federal government’s authority over U.S. intermittent and ephemeral streams and wetlands. This measure would include 2 million miles of streams and millions of miles of wetlands; around 60% of streams in the U.S. only flow on a seasonal basis or after rain. The proposed rule could also extend into waters on private properties.
This rule is intended to resolve a long-running legal battle over how the Clean Water Act should be applied to ephemeral and intermittent streams and wetlands. The Bush Administration issued guidance in 2003 and 2008, and this issue has already been subject to two Supreme Court rulings – one in 2001 and 2006. The 2006 Supreme Court ruling had limited the federal government’s regulatory powers by asserting that bodies of water must be “relatively” permanent, or continuously flowing and sizeable. Due to powerful resistance by business interests, the Obama administration delayed on issuing any additional guidance in its first term.
The proposal is currently subject to a 90-day comment period that will commence in a few weeks. Under the proposed rule, the EPA and the U.S. Army Corps of Engineers would have to evaluate the environmental impact of any activity that could impair these waterways. Developers and agricultural interests have already voiced concerns that this rule will pose a significant burden by requiring them to acquire federal permits in order to continue with proposed activities. The EPA claims that this measure will not expand their jurisdiction, but only clarifies the current regulatory system, but the National Association of Home Builders (NAHB) and others have rejected this assertion.
According to NAHB president Kevin Kelly, a developer and home builder himself:
“EPA was told to make changes to the rule so that everyone understands exactly when a builder needs a federal wetlands permit before turning the first shovel of dirt. Instead, EPA has added just about everything into its jurisdiction by expanding the definition of a ‘tributary’ – even ditches and manmade canals, or any other feature that a regulator determines to have a bed, bank and high-water mark. It’s a waste of taxpayer resources to treat a rainwater ditch with the same scrutiny as we would the Delaware Bay[.]”  
To read the full statement by the NAHB, click HERE.
U.S. Senator David Vitter of Louisiana – the highest ranking Republican on the Senate Environment and Public Works Committee – has also expressed his opposition to this rule, saying that “The ‘waters of the U.S.’ rule may be one of the most significant private property grabs in U.S. history[.]”
To read Senator Vitter’s full press release, click HERE.
The Council for Quality Growth stands firmly opposed to the EPA’s proposed rule because of the increased regulatory burden that it would place on the development industry. Development is crucial to ongoing economic growth, and placing undue burdens on the development industry as we continue to recover from the economic recession would only impede future economic growth.
The Council will continue to monitor this issue and keep members abreadst of new developments.
To read coverage of this issue in the Washington Post, click HERE.
To see a draft of the EPA’s proposed rule, click HERE.