According to a leaked draft rule, the Environmental Protection Agency (EPA) intends to expand its jurisdiction under the Clean Water Act to include virtually all bodies of water, including man made ponds and ditches. Previously, the courts, including two decisions from the Supreme Court, held that EPA’s authority was limited to “navigable waters” used in interstate commerce, and states were able to establish the conditions for use of the waters within their boundaries. The leaked rule making wipes out this difference and, if it remains unchanged, will significantly expand the number of real estate related activities that will require costly federal permits that are often slow to process.
The rule was leaked just after EPA had closed the comment period on a draft scientific technical Connectivity report that theAgency proposed to use to support the development of the rule. The timing of the leak suggests that EPA was prepared to pay scant attention to the thousands of comments submitted by the regulated community, including comments submitted by the Waters Advocacy Coalition (WAC), of which NMHC is a founding member.
Recently, 29 Republican members of the Congressional Western Caucuses sent a letter to EPA urging them to change course and commit to operating under the limits established by Congress. WAC has requested a meeting with the White House Office of Management and Budget and will continue to work with members of the House and Senate on this matter.