EPA Finds a New Pollutant: Water

According to the Environmental Protection Agency (EPA), water can be regulated as a pollutant by the authority of the Clean Water Act (CWA). In saying so, the EPA implicates the very thing it was charged to protect. Ironic?

In July 2012, Virginia Attorney General Ken Cuccinelli sued the EPA for a proposed plan to regulate the amount of water flowing into the Accotink Creek watershed. He was joined by the staunchly Democratic Fairfax County Board of Supervisors. “I know a lot of people were scratching their heads over that,” Sharon Bulova, chairman of the board, said.

Their uncommon bipartisan opposition just goes to show how far federal regulation via the Clean Water Act has overreached. In the Accotink case, the EPA had proposed a plan to deal with sediment in the Accotink Creek aggravated by storm water runoff from Interstate 495. They issued a Total Maximum Daily Load limit to control how much water was flowing into Accotink and from where it could come.

Instead of regulating the sediment, the EPA effectively treated water as the pollutant. The plan would have cost Fairfax County $250 million and Virginia’s Department of Transportation another $70 million, despite the fact that the county has already been working on the problem.

On January 3, a federal court ruled in favor of the State of Virginia, deciding that the EPA could not treat storm water as a pollutant under the Clean Water Act.

The story is emblematic of a much bigger problem: The Clean Water Act, as it stands now, is bankrupt to regulate effectively what it was designed to protect.

Through the CWA, the EPA can levy penalties and criminal charges for discharging a pollutant into “navigable waters.” Despite Supreme Court precedent, the EPA and Army Corps of Engineers have exploited the definition of “navigable waters” to such ridiculous levels that they can regulate activities to protect mudflats, prairie potholes, artificial ponds, and swimming pools.

Such an ambiguous definition has led to many egregious instances of regulatory overreach blocking harmless activities in the name of protecting clean water. In the Virginia case, it would seem that the EPA ran out of things to regulate in the name of protecting water and decided to regulate water itself.

Virginia had the gumption and the financial and political means to stand up to the EPA. But that is not always the case when the EPA comes knocking on the doors of smaller companies and individuals.

It’s time for Congress to recover legislative authority ceded to the EPA and reform the CWA to effectively protect clean water. This starts with clearly defining exactly which waters the Clean Water Act is trying to protect, demanding regulatory consistency, and requiring the EPA to communicate clearly with landowners in legally binding communications. The Clean Water Act—and all environmental regulation—should be a tool to preserve the fundamental principle of liberty, not a means by which to usurp it.