Report: EPA Exceeds Its Authority With Proposed Rules

Congress should use the appropriations process to reassert its authority over the Environmental Protection Agency, according to a Heritage Foundation issue brief released Tuesday. The report, written by scholar Daren Bakst, identifies three issues on which the EPA has proposed rules and regulations that exceed its authority. In all three cases, Bakst recommends that Congress prohibit the agency from using its funding to implement the proposals.  According to the report, “the EPA is using the regulatory process to require greenhouse gas emission reductions even as Congress has been unwilling to take such drastic actions.” Bakst considers this alarming, because most energy use involves some emissions, meaning the proposed regulations would “touch on almost every facet of Americans’ lives.”  The EPA has also exceeded its mandate with regard to standards for ground-level ozone, which is a main component in smog. Recently, the EPA proposed reducing the acceptable ozone level from 75 parts per billion to 60, which the agency estimates could cost “as much as $90 billion per year.” The EPA has also exceeded its mandate with regard to standards for ground-level ozone, which is a main component in smog. Recently, the EPA proposed reducing the acceptable ozone level from 75 parts per billion to 60, which the agency estimates could cost “as much as $90 billion per year.” An independent study commissioned by the National Association of Manufacturers found that the proposed regulations would reduce GDP by an average of $270 billion per year, cause the average annual loss of 2.9 million job-equivalents, and impose $2.2 trillion in compliance costs between 2017 and 2040, which would make the new standards “the costliest regulation in United States history.” The third overreach examined in the report is a proposed rule that would expand the EPA’s authority under the Clean Water Act (CWA), forcing private property owners “to obtain permits from the federal government far more often than they already do now when seeking to use and enjoy their land.”...more

The issue brief has this to say on the "waters of the U.S." issue:

3. “Waters of the United States” Proposed Rule

The EPA, along with the Army Corps of Engineers, has for decades tried to expand its authority under the Clean Water Act (CWA). Property owners may be subject to the requirements of the statute, including having to secure permits prior to taking actions that may impact covered waters. Therefore, determining what waters are covered is central to the scope of the EPA’s authority.

In April, the EPA and the Corps published a proposed rule that would define what waters are covered.[14] The CWA covers “navigable waters.” This term is further defined as “the waters of the United States, including the territorial seas.”[15]
 
In defining “waters of the United States,” the EPA is going well beyond the existing regulations. For example, the new rule would regulate all ditches—including man-made ditches—except in narrow circumstances and cover tributaries that have ephemeral flow, such as depressions in land that are dry most of the year except when there is heavy rain.

This water (and land) grab is an attack on property rights. Private property owners would need to obtain permits from the federal government far more often than they already do now when seeking to use and enjoy their land. There has been widespread opposition to the rule from everyone from farmers to counties, which are concerned that the rule will impose costly new requirements on them.

The proposed rule also undermines the principle of cooperative federalism that is supposed to govern the CWA.[16] States play a central role in the implementation of the CWA. Through this proposed rule, the EPA and the Corps would be usurping state and local power. States, local governments, and private property owners are better positioned to address their unique clean water needs than the federal government.

Recommendation: Congress should prohibit funding for the implementation of this proposed rule. The House Interior and Environment appropriations bill that passed out of the Appropriations Committee includes a provision that would prohibit funding for the rule.[17]