The Environmental Protection Agency has developed a textbook example of government overreach. It's a regulatory proposal called Waters of the United States (WOTUS) that has riled farmers and many other businesses from coast to coast.
At last count, more than 230 organizations are on record in opposition, plus close to 30 states, including Kentucky, are involved in lawsuits to strike this down.
What the furor is all about is an attempt to expand regulatory authority under the federal Clean Water Act.
WOTUS is a technical document defining which rivers, streams, lakes and marshes fall under jurisdiction of EPA and the Army Corps of Engineers.
Problem is, the proposal gives them wide latitude to use "case specific" discretion in judging whether water has a "significant nexus" with tributaries covered by EPA water-quality standards.
By that standard, a farm pond that is little more than a muddy pool during dry summer months and overflows with snow melt in the winter and runs into the creek during a thaw could be a target. Ditto for ditches, prairie potholes and so on.
What is a "water of the U.S."? Only the agencies can say, and their word is final. Under the new rule, just about any patch of land might be found to be "waters of the U.S." You don't have to see water flowing there, or even spot signs of flow.
The rule gives EPA and the corps the trump card: the power to use remote "desktop tools" to identify and regulate a so-called "tributary" on your land — or even just places where a "tributary" used to be — whether or not you can see anything that looks like a water feature.
What's more, the rule automatically regulates other waters within certain distances of any such invisible or historical tributary.
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