EPA trying to expand regulatory authority over 'navigable waters,' Texas AG says

AUSTIN, Texas (Legal Newsline) – The Environmental Protection Agency is proposing new regulations that would expand the agency’s regulatory authority over navigable waters, a move Texas Attorney General Greg Abbott opposes.

Under the regulations proposed by the EPA and Army Corps of Engineers, the definition of “navigable waters” will include ponds on private property, stock tanks and dry ditches.

Abbott submitted formal comments to the EPA and the Corps of Engineers on Monday, opposing the proposed regulations and explaining that the EPA is attempting to regulate private property that clearly falls outside the agency’s jurisdiction.

“The EPA has no authority to regulate dry ditches and stock tanks on private property—but that is exactly what the Obama Administration is trying to achieve under new rules proposed by the EPA and the Corps of Engineers,” Abbott wrote.

Abbott said the proposed rules would “erode private property rights and have devastating effects on the landowners in Texas.”

Under the proposed definition, Abbott said any lands, especially those near the coast, would potentially be within federal jurisdiction.

“Perhaps more troubling… is the federal agencies’ explicit inclusion of ‘ditches’ as ‘waters of the United States,’” he wrote.

“Under this untenable and legally baseless definition, any landowner who has a ditch on his or her private property is at risk of having the federal government exert regulation over that ditch and impose burdensome and expensive federal regulations over dry land that does not remotely resemble any common-sense understanding of ‘waters of the United States.’”

The AG wrote that at a minimum, farmers would be required to pay fees for environmental assessments to determine whether their ditch is a “water of the United States.”

These landowners will then be required to obtain permits just to till the soil near gullies, ditches or dry streambeds where water only flows when it rains.

“It seems inconceivable that this is what Congress intended when it penned the term ‘navigable waters,’” he wrote.

The Clean Water Act was enacted pursuant to Congress’s authority to regulate interstate commerce under Article I, section 8 of the Constitution. As a result, regulatory agencies violate the Constitution when their enforcement of the Act extends beyond the regulation of interstate commerce.

“In other words, there are likely waters—not to mention dry ditches—that the proposed rulemaking purports to subject to Clean Water Act jurisdiction, but that, under a proper commerce clause analysis, would not be subject to federal authority,” Abbott wrote. “Regulating these waters falls outside the scope of Congress’s—and therefore federal agencies’—constitutional authority.”