Center for Property Rights

Sunsh⁠i⁠ne S⁠t⁠a⁠t⁠e News — Improv⁠i⁠ng Your Pr⁠i⁠va⁠t⁠e Proper⁠t⁠y? Check w⁠i⁠⁠t⁠h ⁠t⁠he EPA

By: The James Madison Institute / 2015

Sunshine State News
“Improving Your Private Property? Check with the EPA”
August 25, 2015
By Dan Peterson, JMI Director of the Center for Property Rights
There’s a surprise coming to Florida property owners at the end of August, one wrapped in the federal government’s signature red tape.
The Environmental Protection Agency (EPA) and the Army Corps of Engineers have positioned themselves to regulate practically every square inch of our state.

How? They have redefined the extent of EPA jurisdiction to regulate water and land through a newly written “Waters of the U.S.” rule under the Clean Water Act (CWA). That should come as a concern for those who own property in the Sunshine State because the rule will affect private property rights, states’ rights and our economy.

First, by broadening the definition of “navigable waters,” the EPA expands its right to regulate virtually all waters, even dry land, in the United States.

Beyond their normal or traditional jurisdictions, the Corps and EPA claim virtually all tributaries are now subject to the Clean Water Act — no matter how remote or inconsequential. It expands waters and lands “adjacent” to waters covered by the CWA and “neighboring” lands such as 100-year flood plains and lands within 1,500 feet of the covered waters.

Own property near a stream or a ditch? If either contribute water to a tributary during rainfall or are located within a half mile of a 100-year floodplain, you may need EPA approval to improve your home or change your landscaping. That means layers of federal bureaucracy and expense will be added to what could have been a simple home improvement project.

Next, the new definition usurps states’ rights to maintain control over local land and water use. There have been 37 lawsuits to challenge the law filed by property owners and groups such as the Pacific Legal Foundation. The James Madison Institute just released a report on to encourage Florida property owners to pay close attention to the rule so they don’t violate it. As the report explains, that’s difficult because the rule is vague and allows broad interpretation. Much like the Affordable Care Act, no one can fully predict its effect until it’s implemented at the end of this month.

The agencies claim authority based on the 1977 Clean Water Act. In doing so, though, they ignore Congress’s intent in passing the CWA as expressed in the law itself “to recognize, preserve, and protect the primary responsibilities and rights of the states” to control local land and water use.” Originally, the EPA had limited regulatory authority over “navigable waters” and waters with a “significant nexus” to navigable waters.

Now, implementing this rule puts virtually all waters and much of the land in Florida under the control of the Corps and the EPA, nullifying the constitutional limits on federal authority. The EPA and Corps have a history of abusing their power by attempting to expand their authority. On several occasions, the U.S. Supreme Court has admonished them for overreaching. For example, see Rapanos v. United States.

The CWA was not intended as a general mandate to regulate all waters. Congress does not have that power. It resides with the states. Those with land in Florida must be vigilant in monitoring how this rule affects their property and should inform The James Madison Institute of any negative effects. Floridians must understand the nature of this power grab.

According to the U.S. Supreme Court, sudden and expansive interpretations of long-standing laws are unreasonable and should be met with skepticism. The “Waters of the U.S.” rule certainly fits that bill and this expansion of federal power may be unrivaled in American federal regulatory history.

Dan Peterson is director of The James Madison Institute’s Center for Property Rights based in Orlando, Fla.