There are a lot of ways for the federal government to accumulate to itself new power, but one particularly odious maneuver is through the self-serving redefinition of certain key terms in the law. Case in point, the EPA’s efforts to redefine water-filled slews and ditches as “navigable waterways.”
Why is such a definition important? Because if a water-filled slow, or some inundated part of a farmer’s field, is something more than just a temporary puddle of water then their authority under the Clean Water Act kicks in. Which means they can use that authority to roadblock development and use of the land.
The EPA and Army Corps of Engineers drafted the new guidelines to implement Supreme Court decisions in the Solid Waste Agency of Northern Cook County case in 2001 and the Rapanos case in 2006 after the decisions removed some waters from federal protection and caused confusion about what remained protected.
However, the lawmakers say the jurisdictional limits set by the court are being ignored in order to justify the expansion of the agencies’ control.
The new language is intended to protect smaller waters that could potentially feed pollution downstream to larger bodies of water, but because it is not a formal rule, it cannot be enforced in the courts.
“Although guidance does not have the force of law, it is frequently used by federal agencies to explain and clarify their understandings of existing requirements,” the new guidelines say.
This expansion of power through redefinition of the law is a major problem. It allows organizations like the EPA to essentially legislate without Congress.
The EPA should not be a government unto itself.