Why water regulations should only regulate water

Government bureaucracy can often seem designed to fail, even with something as simple as water. This glib reality is on full display with the Environmental Protection Agency (EPA).

If a federal law says “don’t discharge pollutants in navigable waters,” most people would assume it means not to dump harmful chemicals into large bodies of water. But according to the EPA, that clear statement refers to vast expanses of land that is only wet when it rains—nothing navigable about any of it.

Interpreting the actual meaning of words has never been a specialty of the government.

Upon taking office, President Trump ordered the EPA to treat water as water and limit their enforcement and permitting to streams and rivers that actually flow year-round in permanent watercourses. This is the view supported by four Justices of the Supreme Court in the Rapanos decision, authored by the late Justice Antonin Scalia.

President Trump’s order was spurred by years of EPA oversteps. Examples include  sending a 78-year-old man to prison for turning over dirt in a foot-wide channel in the woods, 40 miles from any navigable river; fining farmers hundreds of thousands of dollars for plowing low spots in their fields that hold rainfall a few weeks a year; ordering families to abandon their home sites in built-out subdivisions; and making offensive statements about crucifying people as examples for the community.

But the EPA, uncertain what would happen to the world if they weren’t there to regulate it into submission, is fighting President Trump’s order. They’re attempting to continue regulating all kinds of intermittent drainages that may flow as little as a few days a year after it rains. That is bad policy, is wrong on the law, and amounts to the swamp thumbing its nose back at the President.

To ensure the EPA adheres to the law and common sense, Pacific Legal Foundation joined with our friends at the Competitive Enterprise Institute and the Oregon and Washington Cattlemen’s Associations to file these comments with the Environmental Protection Agency. We tell it like it is: the law they are supposed to be enforcing applies to relatively permanent and continuously flowing, boat-floating rivers and streams. Not mere trickles.