February 9, 2015

The Waters of the United States rule: not about water

By Anthony L. Francois Senior Attorney

Last week our colleague Brian Miller posted about PLF’s testimony to a lengthy congressional hearing on a proposed regulation to expand the reach of the Army Corps of Engineers and US Environmental Protection Agency over wetlands and other “waters of the United States.” Some might wonder, from this debate, if federal water ways are not already protected from having truckloads of dirt dumped into them. But navigable rivers and lakes already are protected. So what are the Army Corps and EPA trying to do with an expanded definition of “waters of the US?”

The answer: this has little or nothing to do with water, and everything to do with controlling your use of your own (dry) land. For decades, the Corps has effectively protected rivers and lakes from being illegally filled or dredged through its permitting program. But the Corps has long sought to expand its permitting regime upland, onto dry land, and it has pushed this agenda by following non-navigable creeks, streams, and wetlands upstream onto private property all over the country.

PLF won the Rapanos case in the United States Supreme Court in 2006, which slapped back the Corps’ effort to regulate ever smaller tributaries and remote wetlands. But the Corps and the EPA are now back trying to define “navigable waters” to include all manner of dry land, whose owners will then need the Corps’ permission to do almost anything useful with their property.

For example, the Corps and EPA propose to add “floodplains” to the definition of “navigable waters.” That one word will turn enormous expanses of land in cities, towns, and farm regions across the nation into ‘federal waterways’ even though they are bone dry almost all of the time. Flood plains of many rivers have been mapped by the Federal Emergency Management Agency to include any area that might flood in a rare storm, but which are otherwise always dry. Much of the City of Sacramento is mapped within the flood plain of the Sacramento River. The new regulation will turn this privately owned dry land into the federal government’s water, and subject it all to the permitting authority of the Corps of Engineers, and the enforcement authority of the EPA.

Can you find the navigable water in this picture?
Can you find the navigable water in this picture?

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