Issue in Focus
Jun 22 2018
In the movie The Lion King, Mufasa is teaching young Simba about the lands he will eventually rule by saying “Look, Simba, everything the light touches is our kingdom…”
While this moment is fine when played out by a cartoon monarchy, it is gross federal overreach when it’s perpetuated by a federal bureaucracy in the United States. Yet that is essentially what is happening under the Waters of the United States, or WOTUS, rule that was imposed by the Environmental Protection Agency and the Army Corp of Engineers in 2015. These bureaucrats essentially said “everything the water touches is our jurisdiction…”
The rule allowed them to claim regulatory control over even “ephemeral” or “intermittent” water flows, meaning that even man-made ditches or patches of dry land that retain water only a few days a year are subject to the administrative control of this agency.
This would increase EPA jurisdiction over state lands by as much as 400%.
While the Trump administration wisely delayed the rule’s implementation until 2020, Congress needs to act to provide certainty that this rule will not go into effect. It was Congress that allowed this rule to come into being, and Congress needs to fix it.
When Congress passed the Clean Water Act of 1972, it granted ambiguous authority over the waterways of the United States to the EPA. In the kind of horrible lawmaking that often happens in Washington, D.C., the legislative branch gave up their lawmaking authority by setting a broad, vague standard and allowing an administrative agency - filled with unaccountable, unelected bureaucrats - to figure out the rest.
The mess that is WOTUS is a perfect example of this.
WOTUS was crafted by the EPA in a flawed - and actually illegal - process. Not only did the EPA disregard the comments of ranchers, farmers, and others who would be most affected by this rule, but the Government Accountability Office ruled that the EPA broke the law when advocating for support of this rule while it was being developed.
Additionally, water that is sourced on private property could require property owners to obtain EPA permits for routine actions such as landscaping, farming, or building on their own land. Many people that would be affected by this rule wouldn’t even be aware of it, and could be subject to thousands of dollars a day in fines.
This is why I attempted to attach a WOTUS repeal amendment to this week’s appropriations bill. This kind of policy attachment to an appropriation bill is not uncommon. Yet, despite the WOTUS repeal amendment having a recent history of bipartisan, majority support in Congress and actually passing in the House’s appropriation bill, 20 of my GOP colleagues joined with the majority of Democrats in voting to table the measure. This was done solely for political purposes and continues Congress’s pattern of legislative abdication.
While the King of Pride Rock may have authority to broadly claim governance of land unimpeded, the EPA does not have that right. It is Congress’s responsibility to make sure this does not go unchecked, and it is past time we enact legislation to repeal the expansive WOTUS rule.