The Obama-led Environmental Protection Agency is trying to give itself jurisdiction over nearly every body of water in the United States by deleting one key word in how the federal Clean Water Act is enforced – “navigable.”
Under current rules the EPA and the US Army Corps of Engineers only have authority over waters deemed “navigable” in the United States. A navigable body of water is one that commercial vessels such as boats, ships or barges can sail upon. The new rules would change that definition to give the EPA jurisdiction over ponds, streams, wetlands and even irrigation ditches, critics charge.
Controversy over the rule change and its many facets has been ongoing for months, but critics are now spotlighting the EPA’s redefinition of the word “navigable .”
Under the proposed rule , “navigable” would be removed entirely, and the waters of the US would be defined as:
- “All waters which are currently used, were used in the past, or may be susceptible to use in interstate.
- “All interstate waters, including interstate wetlands.
- “Territorial seas”
- “Tributaries” and “adjacent” waters of the above bodies of water, along with wetlands.
“Under the proposed rule, nearly every drop of water that falls would be regulated by the federal government—the Environmental Protection Agency and the U.S. Army Corps of Engineers,” a statement for the American Farm Bureau claims.
The proposed rule would define any body of water as “waters of the United States,” US Senator John Barrasso (R-Wyoming) charged in an Oct. 23 letter to EPA Administrator Gina McCarthy. The letter was signed by 23 other senators.
“The proposed rule would provide EPA  and the Corps (as well as litigious environmental groups) with the power to dictate land use decisions of homeowners, small businesses, and local communities throughout the United States,” Barrasso wrote. “With few exceptions, it would give the agencies virtually unlimited regulatory authority over all state and local waters, no matter how remote or isolated such waters may be from truly navigable waters.”
U.S. Senator Pat Toomey (R-Pennsylvania) made a similar argument earlier this year.
“The EPA’s proposed rule is a terrifying power grab,” Toomey said. “Common sense has gone out the window. The EPA’s new position seems to be that a puddle from your garden hose will ultimately end up in a navigable waterway, so the agency should have dominion over that water too.”
Said Pennsylvania Farm Bureau President Carl T. Shaffer, “It is clear to Farm Bureau that Congress intended to use the term ‘navigable’ waters to limit the scope of federal authority when it passed the Clean Water Act in 1972.”
Rule Change a Major Threat to Property Rights
The American Farm Bureau and the US Small Business Administration believe that the proposed rule is a major threat  to property rights and farmers.
“As a result, permit requirements that apply to navigable waters would also apply to ditches, small ponds and even depressions in fields and pastures that are only wet when there is heavy rain,” the Farm Bureau’s Ditch the Rule website said of the proposed change. Among other things, the rule could require landowners to get permits from the EPA or the Corps of Engineers for activities like fence or road building.
“If landowners could not get permits to do things like build fences and use pesticides to control bugs and weeds—something that would be far from guaranteed—farming and ranching would be much more costly and difficult,” the website stated. “Other landowners, too, would face roadblocks to things they want to do, such as build a house or plant trees.”
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