EPA Releases Final Water Rule That Threatens Private Property Use

The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers today finalized stringent U.S. water regulations that redefine what water and private property can be controlled from Washington.

The EPA says the rule ensures that the Clean Water Act more precisely defines and determines what water is protected by private property, business, and industry users. The rule could subject small and large private property owners to new lawsuits by well-funded environmental groups and the federal government over land use.

While the EPA says the rule does not create new permitting requirements for agriculture and it maintains all previous exemptions and exclusions, the National Association of Manufacturers says the rule will expand the federal government’s reach into manufacturers’ on-site activities.

“As of today, if you have a stream on your property that only flows when it rains, you have a ‘Water of the United States’,“ said Ross Eisenberg, NAM’s vice president of regulatory and resource policy. “If you have a pond that happens to be near another covered water, you have a ‘Water of the United States.’ If you have certain types of ditches, you have ‘Waters of the United States’ on your property. This all adds up to increased regulatory uncertainty, permitting costs, delays and even litigation, not to mention a giant new set of hurdles standing in the way of construction.”

The proposed rule had been called Waters of the United States but the EPA changed the name to the Clean Water Rule.

The Business Council of Alabama in its 2015 Federal Legislative Agenda said it will oppose efforts to expand the jurisdiction of the Clean Water Act to allow federal agencies to regulate ditches, culverts and pipes, desert washes, sheet flow, erosional features, and farmland and treatment ponds as “waters of the United States,” subjecting such waters to all of the requirements of the CWA.

The new rule extends the federal government’s reach to tributaries that may feed downstream waters. The Clean Water Rule protects navigable waterways and their tributaries. The rule also protects ditches that are built out of streams or function like streams and flow when it rains.

The new rule will be effective 60 days after publication in the Federal Register.

-Dana Beyerle