A complex rule recently proposed by Environmental Protection Agency (EPA) and Army Corps of Engineers could drastically expand the agencies’ power over almost any type of water within the United States—potentially requiring property owners to even secure “a permit for kicking some sand into a jurisdictional water.”

The EPA has launched a social media campaign in support of the rule, known as “Waters of the United States” (WOTUS), and EPA Administrator Gina McCarthy has labeled critics’ concerns over the rule “ludicrous” in an effort to simplify the issue into a false choice between clean water and the rule. But a new report by the Heritage Foundation’s Daren Bakst outlines the problems with the vague wording of WOTUS:

More overreach from the EPA. “The sheer overreach of the proposed rule is chilling. Both the EPA and Corps have consistently sought to acquire more power under the [Clean Water Act (CWA)]… The agencies can lump a bunch of waters together until they get the required impact and there is no apparent limit to the size of the region. A water does not even have to be close to a ‘water of the United States’ to be considered jurisdictional.”

Attack on property rights. “The proposed rule could drastically infringe on property rights. Under the CWA, the federal government has jurisdiction over ‘navigable waters,’ which the CWA further defines as ‘the waters of the United States, including the territorial seas.’  The proposed rule defines what is meant by ‘waters of the United States,’ which is critical since that helps clarify the scope of the CWA. If a water is covered under the law, property owners could be required to secure costly and time-consuming permits to take actions that impact these waters.”

WOTUS was justified through a flawed process. “In July 2013, the EPA assembled a Scientific Advisory Board to review a draft report that it had developed titled the ’Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence.’… By not waiting for the final report before developing the proposed rule, the EPA has made the policy decisions look like a foregone conclusion. If this type of process is allowed, government agencies could develop proposed rules with limited support and then use reports and studies after the fact to validate what the agencies have already proposed.”

Read the full Heritage report, “What You Need to Know about the EPA/Corps Water Rule: It’s a Power Grab and an Attack on Property Rights,” here.

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