Center for Property Rights

Repor⁠t⁠ Warns of Po⁠t⁠en⁠t⁠⁠i⁠al Flor⁠i⁠da Impac⁠t⁠ from Augus⁠t⁠ Implemen⁠t⁠a⁠t⁠⁠i⁠on of New Federal Wa⁠t⁠ers of ⁠t⁠he U.S. Rule

By: The James Madison Institute / 2015

CONTACT: Valerie Wickboldt | 850 386-3131 |
  Report Warns of Potential Florida Impact from August Implementation of New Federal “Waters of the U.S.” Rule 
~ Revised rule significantly increases EPA jurisdiction over water bodies and threatens to micromanage property owners, The James Madison Institute report states ~
TALLAHASSEE – The end of August 2015 marks a significant change in federal control over water bodies in Florida and across America as a new rule defining U.S. waters will be implemented despite multiple challenging lawsuits from property owners and other organizations. A new report from The James Madison Institute (JMI) warns that the new “Waters of the U.S.” rule leaves both explanation of terms and actions allowed by the federal government too broad to clearly interpret and that this will negatively impact the way Floridians – public and private – seek to utilize their property.
Navigable waters, and lands associated with these waters, will now fall under the Environmental Protection Agency’s (EPA) regulatory control under the “Waters of the U.S.” rule. As a result, landscaping, gardening or changes to one’s home or land could require EPA’s explicit approval.
“Implementing this rule puts virtually all waters, and much of the land in Florida, under the control of the Army Corps of Engineers (Corps) and the EPA nullifying the constitutional limits on federal authority,” said Dan Peterson, director of the JMI Center for Property Rights based in Orlando. “This expansion of federal power may be unrivaled in American federal regulatory history.”
Much of Florida sits within 100-year floodplains, or lands with a 1 percent chance of flooding in 100 years, or within 4,000 feet of “tributaries” or “regional water bodies,” terms vaguely defined under the new revised federal rule, but yet regulated, by the EPA. Businesses, homes or farms within or near 100-year floodplains, must now pursue federal approvals for the simplest work on property or face the prospect of overwhelming federal prosecution. Property owners wishing to use or develop land containing a ditch or near a stormwater retention pond would also be subject to EPA approval.
In JMI’s Backgrounder: “Waters of the United States: A Case Study in Government Abuse,” Reed Hopper, JMI adjunct scholar and principal attorney of Pacific Legal Foundation’s Environmental Law Practice Group and Mark Miller, JMI adjunct scholar and managing attorney of the Pacific Legal Foundation’s Atlantic Center in Palm Beach Gardens, Fla., share five options still available to oppose or change this new rule.
The Congressional Review Act: If Congress passes a joint resolution disapproving a rule under procedures provided by the Clean Water Act, and the resolution becomes law, the rule cannot take effect or continue to take effect.
Appropriations bill limitations: A provision in an appropriations bill can be used to block or redirect an agency’s course of action by limiting or preventing agency funds from being used for this rule.
Standalone targeted legislation: Legislation, other than the two mentioned above, can take a variety of forms, including a bill to prohibit the EPA and Corps from finalizing, implementing or enforcing the rule, or a bill to address criticisms of the rule.
Broad amendments to the Clean Water Act: Legislation can affirm or clarify Congress’s intention regarding Clean Water Act jurisdiction.
Judicial action: Solutions above would need a two-thirds vote of the House and Senate to override a likely veto. The last option is to oppose the rule in court. Already, 27 states as well as other agricultural and business groups have filed suits against the EPA and Corps to end the rule before it begins at the end of August 2015.

The report covers background research on the Clean Water Act as it pertains to the new “Waters of the U.S.” rule. By definition, anything regulated under the Clean Water Act must have a substantial connection to interstate commerce. By using terms such as “neighboring” and “adjacent,” again, the new rule becomes difficult for property owners to clearly understand, subjecting them to possible violations without being aware.
“Saying the federal government must tell us it will not regulate our backyard pools as a water of the United States tells the American people just how little the government thinks of the limitations placed on its power by the Founding Fathers,” Hopper said.
According to the U.S. Supreme Court, sudden and expansive interpretations of long-standing laws are unreasonable and should be met with skepticism.
“’Waters of the U.S.’” rule certainly fits that bill,” Peterson said. “Floridians must understand the nature of this power grab. As recommended in the study, if the implementation of this new rule does begin as scheduled at the end of August, Floridians should remain watchful and report negative impacts of this rule to The James Madison Institute and Pacific Legal Foundation.”
For further information about JMI, please visit
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Trusted Solutions for a Better Florida: Founded in 1987, The James Madison Institute (JMI) is one of Florida’s oldest and largest nonpartisan, nonprofit research and educational organizations. JMI is dedicated to maximizing opportunities for all by promoting economic freedom, limited government and personal liberty. Learn more about JMI at Twitter: @JmsMadisonInst – Facebook: