by Tim Huelskamp and James Taylor
The Environmental Protection Agency announced Tuesday it is rolling back some of the excessive, and possibly illegal, water regulations imposed by the Obama administration. EPA’s announcement is a welcome relief for homeowners and property owners impacted by overly aggressive EPA officials.
As a federal executive agency, EPA can only enforce laws that have been passed by Congress. While EPA has some rule making authority, it cannot make up laws of its own and then decide to enforce them. This is a very important check against a dictatorial presidency or executive branch. Regarding water regulations, Congress, via the Clean Water Act, has given the executive branch authority to regulate only those bodies of water that are “navigable waters of the United States.”EPA has always asserted a broad definition for navigable waters. Dating back to the 1980s, EPA has asserted it can regulate smaller, streams and tributaries that cannot be navigated but that flow into navigable waters. EPA has also asserted it can regulate wetlands that are adjacent to navigable waters.
The Obama administration attempted in 2015 to further expand the definition of navigable waters to include such entities as isolated ponds, dormant stream beds that are dry most of the year, and minor depressions in the land that hold water only in the immediate aftermath of significant rainfall.
The consequences of the 2015 regulatory overreach can, and have been, devastating. Overly aggressive EPA officials tell farmers they cannot manage or cultivate farmlands that hold isolated puddles merely a few days of the year. Homeowners are told they cannot landscape or fill in nuisance depressions in their property that hold water briefly after a heavy rain. Federal bureaucrats have stripped homeowners and families of practical ownership rights to property they have purchased and managed for generations. Property owners who defy the EPA and other federal bureaucrats face steep penalties and fines.
Citizen lawsuits have been moderately successful challenging the Obama administration’s overreach. Courts have blocked enforcement of the Obama administration’s 2015 regulations in 28 states. Still, homeowners and landowners in the remaining 22 states remain subject to the oppressive 2015 regulations. The issue has been a likely candidate for eventual Supreme Court review, but in the meantime, people remain subject to the unfair policy.
The Trump EPA is thankfully proposing to restore common sense to EPA regulatory authority. The agency proposes to walk back the Obama administration’s asserted authority to regulate stream beds and land depressions that are usually dry. EPA will no longer regulate wetlands unless they are “physically and meaningfully connected” to waters under EPA jurisdiction. EPA will also eliminate subjective criteria for determining whether land or water features qualify under navigable waters jurisdiction, granting individuals more certainty about how they can use their property. These corrections are long overdue, and represent another example of President Trump keeping campaign promises to reduce environmental and regulatory overreach.Environmental activists are sounding an alarm about potential environmental harms, but their arguments are weak. EPA will still regulate all navigable waters, as well as meaningful permanent and intermittent tributaries to navigable waters. Also, very importantly, all 50 states have their own environmental laws and regulations, allowing regulation above and beyond navigable waters as defined by EPA. For normally dry streambeds, isolated depressions that only occasionally hold water, and other land features that the Obama administration sought to regulate, regulations will once again come from state and local governments that are more responsive and accountable to the people and communities being regulated.
EPA’s proposed rule will continue to provide strong environmental protection for the waterways Congress authorized EPA to regulate. At the same time, the proposed rule will roll back executive branch overreach and protect the rights of homeowners and landowners.