WOTUS: The facts about EPA’s wet fiction

  • Splashing puddle

Landowners, homeowners, business owners, home builders, construction companies, the forestry and mining industries, and just about everyone else engaged in productive activities in the United States are in the crosshairs of the most far-reaching power grab the Environmental Protection Agency (EPA) has ever undertaken.

In the name of “clarifying” the federal government’s regulatory powers over certain bodies of water, EPA and the U.S. Army Corps of Engineers (Corps) in March unleashed a torrent of regulations designed to give Washington final authority over land-use decisions from coast to coast. The regulations cover “waters of the United States” and are commonly referred to as WOTUS.

EPA contends that its WOTUS onslaught is necessary to clear up EPA building“uncertainties” arising from U.S. Supreme Court decisions from 2001 and 2006 that restricted the agency’s authority and cast doubt over the legitimacy of its schemes to regulate certain bodies of water. Despite losing both cases, EPA now claims that ambiguities in the rulings give it greater authority than ever before to regulate private land and isolated and intermittent bodies of water.

Facing a ferocious backlash from ordinary citizens and from members of Congress representing both parties, EPA has defended its power grab, which is also a land grab, by assuring the public that people have nothing to fear from WOTUS. But the office of Sen. David Vitter (R-Louisiana), ranking member on the Senate Environment and Public Works Committee, has compiled a list of EPA’s claims and compared them with the wording of the agency’s proposed regulations. And to the surprise of no one, their research revealed that EPA is fudging the truth. Here’s what they found:

EPA says WOTUS does not apply to ditches.

Not True: For the first time, the proposed rule explicitly includes ditches unless they fall within one of two exceptions based on location and flow. Many ditches throughout the country will be unable to meet the rule’s limited exemption provision and thus will be subject to federal Clean Water Act (CWA) jurisdiction under the rule, contrary to EPA’s claims.

EPA says WOTUS will not regulate activities on land.

Not True: Under the CWA, federal jurisdiction extends to “navigable waters,” which are defined as “waters of the United States.” Water bodies deemed “waters of the United States” are subject to permitting mandates, federal enforcement mechanisms, mitigation procedures, and citizens suits. A wide variety of activities on land require permits when they affect a “water of the United States” including, homebuilding, construction, agriculture, ranching, and mining. The CWA does not provide a guaranteed a right to a permit, and if an applicant is denied, that individual or business will be unable to move forward with the planned project, thus allowing EPA and the Corps to dictate the list of permissible land-use activities afforded a particular landowner.

EPA says WOTUS will not apply to groundwater.

Not True: The rule claims to exclude groundwater, but language in the regulation also states that a body of water may be a “water of the United States” if it has a “shallow subsurface hydrological connection” to other jurisdictional waters. This language suggests that EPA and the Corps may intend to use groundwater as a basis for regulation under the CWA.

EPA says WOTUS will not affect stock ponds.

Not True: Under the rule, if the stock pond is natural or used for purposes other than those listed by EPA, the stock pond could be considered a “water of the United States.” The rule says ponds are exempt only if they are “artificial” and are used “exclusively” for stock watering, irrigation, settling basins, or rice growing.

EPA says WOTUS does not require permits for normal farming activities, like moving cattle

Not True: More farming activities will require CWA permits under the agencies’ interpretive rule for normal agricultural activities. Included in the interpretive rule is a “prescribed grazing” requirement, so if the federal government does not like the way a rancher grazes cattle, Washington bureaucrats can either force the rancher to get a CWA permit or make him pay up to $37,500 per day in fines.

EPA says WOTUS does not regulate puddles.

Not True: The language of WOTUS is so sweeping that almost any wet area could be considered a “water of the United States.” Under WOTUS small and isolated bodies of water may be considered a “water of the United States” when, in combination with other similarly situated waters, they have a “significant nexus” to a traditional navigable body of water. This provides no effective limit to federal regulatory authority and will encourage litigious environmental groups to sue property owners no matter the intentions of EPA. In fact certain environmental groups are already using the rule’s language to bring citizen suits based on the broad authority WOTUS provides, and there is little reason to believe that puddles will not attract abusive litigation in the near future if WOTUS is allowed to go into effect.

If the proposed regulations are allowed to go into effect, the Obama EPA and the Corps will become lord and master over millions of acres of private land throughout the country.

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About the Author: Bonner Cohen, Ph. D.

Bonner Cohen, Ph. D.

Bonner R. Cohen, Ph. D., is a senior policy analyst with CFACT.

  • Chuck

    Surprise Surprise the EPA lies too, but only to get there way.

  • Tom Monfort

    This is another scheme by the government to gain more control over the states, corporations and individuals by claiming more land within state borders. Out west, the government controls huge percentages of ‘public land’ under various government agencies. As examples, the National Forest Service and Bureau of Land Management alone control more than 75% of the total land of Nevada, more than 70% of Utah and more than 60% of Idaho and this is only 2 government agencies! There’s also Dept of Defense, Park Service, Dept of Interior, Fish and Wildlife, and more controlling even more land, in addition to the above. This new WOTUS scheme will allow the government to control even more land out west and gain more control of land in the rest of the country when they can tell you HOW you can use your own property. Another example of the left’s lack of common sense and wisdom to go along with all of their education and intelligence, having been replaced by greed and arrogance.

  • Kevin

    If Congress tried to probe any deeper, EPA could always claim their hard drives crashed…

  • Tom

    Here, in the Pacific Northwest, there’s been a rumbling over the EPA’s consideration to tax homeowners and businesses based on the square footage of the roofs on their homes and buildings. The EPA’s claim is the tax generated from potential accumulated water run-off from these roofs would provide funding to maintain the water quality in the Pacific Northwest. To me, this sounds like a Ponzy scheme perpetrated by the EPA to fleece the American pocketbook while filling the EPA’s coffers. Therefore, because of the parameters spelled out via the WOTUS scheme, it appears WOTUS may also be providing a “loophole” for infringement upon the ownership of American homes and businesses. If the “politicians” that dream up these unprecedented and socialistic levies are actually interested in anything other than enhancing governmental leverage and imposing more taxes on the American taxpayer, they should also be willing to give up their private jets, limos and extravagant lifestyles, reducing their own personal carbon footprints. The revenues saved could be granted to the EPA for cleaning up the environment as needed. Don’t see that happening any time soon. Be forewarned…a tax on your person based on it’s capacity to produce waste and CO2 may next. Keep in mind, these are the the same “politicians” that want to tax ranchers and farmers based on livestock flatulence…I’m afraid we’re in for a bumpy ride…

  • Bill

    The EPA is a perfect illustration of the usurpation of power as described in the article published this month in Imprimis, a publication of Hillsdale College: http://imprimis.hillsdale.edu/file/archives/pdf/2014_09_Imprimis.pdf

  • Dick

    Trying to take over our land? More right wing nonsense. This is the same line of reasoning you will find in those who deny the theory of evolution and global warming in the face of overwhelming evidence. Enough already.

    • David Douglass

      You don’t have a shred of ‘real-time’ evidence on any of your stated “straw man” issues to prove your supposition–and they are exactly that. Computer models are not facts. Theories, are not facts. and WOTUS policy IS a fact of law and litigation. The battle of the state governments with the federal government over land and water is a matter of public record. One political party big government proponents want to dissolve State’s Rights and the Republic and since all states were formed based on water and land use in the first place, it is a fact that the backbone of America’s 50 States is exactly the ownership of land and water.

    • Shamiram

      I am sorry to see that you still live in La La land the ones in children’s story book. Wake up, grow up.

    • Tom Monfort

      ‘Trying to take over land?’ The word used was ‘control’, such as the case of a landowner who was in the process of building a new home and was stopped by the government when they declared his property ‘wetland’, thus assuming ‘control’ of his property by denying him the right to build his home. And as far as the ‘overwhelming evidence’ of global warming, it wasn’t enough for that term to be changed to ‘climate change’ because of factual evidence of no significant warming trends. So they deemed carbon dioxide a greenhouse gas, in spite of the fact that carbon dioxide is an essential part of life on this planet, and changed the mantra to ‘climate change’. Last, I am not right wing, I’m an American who believes in the Constitution as it was written, not as a living document to be changed to give the federal government more power and ‘control’ of the American people.

  • wally12

    The EPA in its initial years of existence did some good regulations such as hazardous waste, water discharge and air pollution from industries and municipalities. It resulted in improvements since industry and cities were required to clean up their discharges. In recent years, the EPA became obsessed with power and controlled by extreme environmental groups. Their move to claim that CO2 was an air pollutant is a glaring example. This latest move to obtain more control over all lands by strict regulation of ditches and small bodies of water including ground water is another example of power grab. It is time that the EPA power be reduced and under the control of congress and not just the president. We have already experience how a president has gained more power since the agency is under the executive branch. Power in the hands of zealots such as Obama has been demonstrated during all of his term in office. Rather than the EPA and the environment being governed by science, it has become a political agency that answers to the whims of the executive.