The EPA is trying to regulate every damp spot in America, and a flood of lawsuits is the result.
The Constitution gives the federal government the authority to regulate commerce on “navigable waters,” according to the Supreme Court. But the Environmental Protection Agency has just issued six pages of fine print to redefine “waters of the United States” to exert its control over areas that are dry 99 years out of 100, along with all land within 4,000 feet of those 100-year flood plains.
Politics has always involved slinging mud. Now it involves regulating muddy ground.
The bottom line: The EPA says “All Your Land Are Belong To Us.”
The new claim of power is so vast and so vague that the EPA adds that it is not including swimming pools — except, it adds, if a swimming pool “otherwise meets the terms of paragraphs (o)(1)(iv) through (viii) of this section.”
No wonder 28 states are suing to stop the power grab and halt President Obama’s runaway regulators. But the White House crows that the regulations are necessary to protect our water from climate change and to end the “confusion” of Supreme Court decisions that limited the EPA’s jurisdiction over water. Mr. Obama claims that 117 million more Americans will now have their water protected by the feds.
That means states and communities lose control over their waterways, drainage areas and land use policies. Land owners also lose control. Mr. Obama claims that farmers won’t need federal permits “unless” their actions might pollute water. In other words, if you like your land’s current contours, you can keep them. But if you move around the dirt, beware!
The threat to agriculture is immense, since the EPA dictates measuring whether there is one single “bad” particle among a trillion. One good spit to them is a discharge of a major pollutant. The American Farm Bureau is warning that “ordinary fieldwork, fence construction or even planting could require a federal permit.”
“The rule would expand federal control over land features such as ditches and areas of agricultural land that are wet only during storms,” the AFB says.
The Farm Bureau has filed its own lawsuit against the new rule. So has the U.S. Chamber of Commerce. And the American Road and Transportation Builders Association, because you cannot build a road without moving dirt around. Construction is slow enough, without requiring special permits from the EPA and/or its partner in these regulations, the Army Corps of Engineers. The road-builders warn that the rule dictates “a litany of qualifications must be met before a roadside ditch can be deemed exempt” from needing a special permit.
The rest of us should also worry. Roughly speaking, the EPA has expanded its power by 60 percent, since it announced previously that “60 percent of stream miles in the U.S. only flow seasonally or after rain,” but would henceforth be regulated.
Water from a mud puddle, a watering trough, your backyard, or a farmer’s fishing pond may eventually flow into a river, but that doesn’t make the quantity or quality meaningful. Yet EPA officials insist that even small and temporary flows lead to permanent and navigable waters. Eventually. Just like all power flows to Washington, D.C.
The rules even specify that bureaucrats can ignore the real world and base their decisions on a desktop analysis of whether a periodic trickle of water might come within 4,000 feet of a 100-year flood plain.
Unless the federal courts issue an injunction, the EPA rule becomes effective August 28.
No place in America is safe from the EPA. Even the hot and dry Mojave Desert gets 5 inches of rain each year — enough to bring the desert under the EPA’s water decrees.
The first-ever viral meme on the Internet spoofed a mistranslated line from a video game, “All your base are belong to us.” Now the EPA has a new meme, but it’s not a game and it’s not funny. The bureaucrats are saying, “All your land are belong to us.”
• Former Congressman Ernest Istook is president of Americans for Less Regulation. Get his free email newsletter by signing up at eepurl.com/JPojD.