by Brian Seasholes
Big problems are looming for endangered species and the landowners
who harbor them due to a combination of the Environmental Protection
Agency’s huge expansion of “waters of the United States” it regulates
under the Clean Water Act, and efforts to expand the Endangered Species
Act to encompass entire watersheds.
Under the Clean Water Act, the federal government can regulate
discharge of pollutants into what are known as “navigable waters.” But
over the decades the Environmental Protection Agency has expanded this to include isolated wetlands and
pools of water unconnected to navigable waters, and tiny streams that
can only be navigated by a toy boat, not the type of adult-sized boat
the for which the legislation was originally intended and common sense
dictates. This regulatory expansion has caused significant hardships for
many landowners who find, among other things, that low-lying areas that
only hold a few inches of water when it rains, or seasonal streams that
are dry for much of the year, are subject to regulation under the Clean
Water Act — all of which is enforced with threats of jail time and huge
fines
.
Now the Environmental Protection Agency has extended the regulatory
reach of the Clean Water Act to encompass even more waters that are not
navigable, including: irrigation ditches if any portion was dug from a
watercourse that flows eventually, but not necessarily directly, into a
navigable water; any watercourse or water drainage so long as it has a
bank, bed and high water mark; and any water feature, including those
that are not navigable, within ¾ of a mile of a so-called
“jurisdictional water” as long as the feature meets any one of nine
extremely broad “significant nexus” criteria.
The Endangered Species Act is similarly far-reaching.
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