A few years ago, several Utah legislators and I met with a frantic homebuilder from St. George who received a “cease and desist” notice from the Army Corps of Engineers stating that his new subdivision, built literally in the desert, violated the federal Clean Water Act. The Army Corps of Engineers, acting at the behest of the Environmental Protection Agency (EPA), claimed that moving dirt and leveling ground to build houses impacted the “navigable waters” of the United States and therefore fell under their Clean Water Act jurisdiction because when it rains in Washington County, the rainwater eventually makes its way into the Virgin River.
We were flabbergasted, not only at the EPA’s audacity to claim that the gaps between sagebrush were tributaries of navigable waters, but that the Virgin River itself, which is maybe 2 feet deep, is somehow navigable, as if some grain barge is expected to come floating down it any day.
The only remedy left open to this developer was to sue the EPA in federal court, taking on an agency with thousands of attorneys, nearly limitless taxpayer resources and a determination to exert its control over all of the “waters of the United States.” I have never felt more hopeless or helpless during my time in public service. We, as state legislators, could do little for him. We could only commiserate.
Over the years, ignoring or twisting plain legislative language, the EPA has persistently, audaciously extended its regulatory control, pressing into states, counties and cities by promulgating rules, revising definitions and devising ever more tenuous constitutional arguments to justify its interventions. It is an agency out of control.
In late November 2008, the EPA revised its definition of “navigable waters” under the 1970s' era Clean Water Act to include interstate waterways, all of their tributaries and intrastate lakes, rivers and streams that are used for recreation or fishing if they, even peripherally, impacted interstate commerce. (To extend its reach into state water issues, the EPA was careful to try to connect its new rules to Congress’ constitutional authority to regulate interstate commerce among the states.)
Since 2008, the EPA has aggressively sought to entrench its self-designated authority by issuing cease and desist letters, threatening litigation and levying fines. Just last week, as reported by the Deseret News, the EPA threatened to fine a Wyoming man $75,000 per day unless he dismantled a fish pond he constructed on his private property, even though he held water rights to the water in the pond, the pond was properly permitted by the state of Wyoming, and there was no shred of evidence that his pond had a negative impact on the cleanliness of the water. This is bureaucratic blackmail at its worst.
On Tuesday of this week, the EPA proposed yet another aggressive expansion of its authority under the Clean Water Act. Claiming that “confusing and complex” court rulings necessitated new rules, the EPA is now claiming regulatory authority over “intermittent and ephemeral streams and wetlands,” opening the door to unfettered regulation of seasonal ponds, streams and ditches. The EPA argues that such waters “form the foundation of the nation’s water resources.” Under this logic, the EPA is staking its claim to all the water in the United States.
No one can rein in the EPA, or other federal agencies, but Congress. The EPA derives its rulemaking authority from Congress itself, and Congress could require affirmative approval of all new regulations prior to their implementation. This is the simplest and most effective way to bring runaway federal bureaucrats under control. For the good of the country, this must be done.
Dan Liljenquist is a former state senator and former U.S. Senate candidate.
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