Depending upon which side of the political aisle you sit, the Environmental Protection Agency’s recent expansion of its jurisdiction under the Clean Water Act is either a much-needed, additional layer of federal oversight to protect our waterways or yet-another example of unnecessary overreach by the Obama administration.
There are ideological arguments – not all of them persuasive – on both sides.
A total of 29 states, including Florida, already have filed lawsuits opposing the EPA’s new “Waters of the United States” rule, which went into effect Aug. 28, and challenged the agency’s unilateral decision to expand its authority.
Thirteen of them, excluding Florida, won a preliminary injunction in North Dakota on Aug. 27, when a federal judge halted the implementation of the EPA rule, saying it would “irreparably diminish the states’ power over their waters.”
Other lawsuits also have been filed, representing the interests of the oil, agriculture and home-building industries, all of which are concerned that the EPA’s expanded jurisdiction will hinder their operations and add costs.
In addition, the U.S. House of Representatives voted 261-155 in May to block the agency’s rule with the support of Republicans and 24 farm- and energy-state Democrats.
Similar legislation is moving through the Senate, despite assurances from the White House that the president will back the EPA and veto the bill.
That’s where the debate stands, legally and politically.
But what about us?
Where does the EPA’s power grab leave the good people of Indian River County, home to dozens of small streams, creeks, ponds, drainage ditches, roadside canals and wetlands – as well as seasonal tributaries that remain dry for much of the year – all of which now fall under the agency’s expanded regulatory umbrella?
How will this rule impact the individual property owner who wants to expand his waterfront home or build on a parcel of land adjacent to anything that resembles a waterway?
What will the EPA require from our local governments when they want to widen a roadway that runs along a canal?
Will a rancher or farmer be allowed to close off a ditch to make a pond for livestock or divert water for irrigation purposes?
Nobody seems to know.
“Those are good questions, but it might be a while before we can answer them,” said Roland DeBlois, the county’s chief environmental planner. “This is definitely going to have some impact, because we have a lot of ditches and canals, and it’ll add another layer of red tape and expense to the regulatory process.
“The thing is, a lot of these water quality and wetlands-protection issues – if not all of them – are already covered by state agencies and local governments,” he added. “There are already some pretty strict regulations, especially on developers. I don’t know how much stricter they can get.
“Now, though, in addition to state and local approval, you’ll probably need to get a permit from the EPA.”
And permits cost money.
“There’s always a cost to regulation,” County Administrator Joe Baird said.
Now, those costs also will include any additional, often-unnecessary improvements or safeguards deemed necessary by the EPA, which claims that putting thousands of new waterways, smaller tributaries and wetlands under its jurisdiction will provide new environmental and drinking-water protections.
The Clean Water Act, enacted in 1972, granted the federal government broad powers to limit pollution in “navigable waters,” such as major rivers and the Great Lakes, but it was vague in identifying how far upstream protections must reach to keep those bodies clean.
Through the “Waters of the United States” rule, the EPA attempts to include groundwater, headwaters, distant tributaries and, essentially, any area where water might flow.
“The EPA now has regulatory authority over every puddle in America,” County Commissioner Bob Solari said. “The good news is, I don’t think it will hit us for a few years – until we do something to get on their radar. The bad news is, when that happens, it’ll definitely cost people money.
“But the average citizen isn’t going to oppose the EPA until the EPA says, ‘You’ve got a puddle on your property and you can’t build the house you’ve wanted to build for 30 years.'”
That scenario might be only a slight exaggeration, considering the way federal rules seem to be encroaching on private-property rights, especially when it comes to environmental issues.
But the EPA rule also could impact county-funded, capital-improvement projects because the county isn’t a drainage district.
“We don’t own a lot of ditches,” county Public Works Director Chris Mora said, “but we do own swales, dry retention areas – low-lying areas that could retain water.”
And neither Mora nor DeBlois knows how far the new EPA rule will go.
“I know there’s concern from the agricultural community, too,” DeBlois said. “From what I’ve read, there are some agriculture exemptions, but we’ll learn more as we go along.”
Currently, the EPA’s expanded jurisdiction applies to every state except the 13 granted the injunction: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming.
Florida Agriculture Commissioner Adam Putnam, who supported the lawsuit filed by state Attorney General Pam Bondi, argued that “arbitrarily expanding federal oversight to remote wetlands would undermine the strong wetlands-protection and stormwater-management regulatory programs we have in place.”
“Diverting local, state and federal funds to marginal waters,” he added, “could dismantle environmental protection programs statewide.”
In filing her suit against the EPA, Bondi said the state is “better suited than the federal government to establish the regulatory rules necessary to protect our unique waterways,” and that the legal challenges to the agency’s rule are “crucial in preserving states’ rights and state waters, and stopping federal overreach.”
It’s hard to disagree, even though the suit filed in Georgia by Florida and 10 other states was recently dismissed by a federal judge who ruled that she lacked – get ready for this – jurisdiction.
Fact is, the EPA is not an elected body. It’s a massive, well-funded, federal bureaucracy run by political appointees and filled with ideologues.
And the agency expanded its jurisdiction without Congressional consent.
Whether the EPA can unilaterally supplant or supersede the states’ authority is, ultimately, a constitutional question for the courts, maybe even the Supreme Court.
“This, in my view, is just part and parcel of the growth, unaccountability and lack of transparency of the administrative state,” Solari said. “We have all these federal bureaucracies formed through legislation that have expanded their power in ways the legislators never imagined or intended.
“More and more, these bureaucracies have developed their own ideologies and they function accordingly, rather than by the intent of the legislators who created them,” he added. “The EPA is one of those bureaucracies.”
Certainly, over the past 43 years, the EPA has eagerly expanded its regulatory tentacles, particularly with regards to the Clean Water Act, which now seems to govern any pool of water that might eventually flow somewhere else – all enforced with threats of jail time and huge fines.
But has the EPA finally gone too far? Is the expansion of the agency’s jurisdiction a matter of oversight or overreach? Is this new rule even necessary?
Your answer likely depends upon which side of the political aisle you sit.
As for how it’s going to affect us, locally …
Nobody seems to know, but all of us should care – because the farther we get from those who govern us, the less accountable they need to be.