The Clean Water Act Goes Too Far


In 1972, Congress passed the Clean Water Act under its constitutional authority to regulate interstate commerce. The law enabled the EPA to establish rules to protect the quality and sustainability of waterways used to transport goods between states.

Repeatedly, the EPA has tried to expand the scope of its regulatory power beyond what Congress authorized. Several court rulings in recent years have rebuked the agency for trying to regulate small pits, ditches, or wetlands that could not possibly be used for interstate commerce.

In 2015, however, the EPA finalized a rule that interprets the Clean Water Act’s phrase “navigable waters” of the United States as including ditches, puddles, and ponds. Virtually every drop of water in the United States, under the rule, is subject to regulation and permitting requirements.

The impact of this rule is likely to be most acute in the agricultural industry, where irrigation techniques will now attract additional bureaucratic scrutiny. Jon Olson, executive secretary of the Maine Farm Bureau Association, warned in 2014 that “normal farming practices conducted near water, even parts of fields that are only wet during rainstorms, could be subject to federal permits” or hefty fines. Routine activities like tilling land or moving cattle across streams could be subject to red tape that small and medium-sized farms struggle to understand. Last year, the National Corn Growers Association predicted that the rule could have “a significant and negative impact on farms and ranches across Maine.”

Small business owners from around the country testified before Congress that the rule’s vague language and the EPA’s resistance to public comment suggest a massive regulatory expansion with unpredictable consequences. Alan Parks, an executive at a stone and gravel company in Tennessee stated: “The proposed rule has no clear line on what is ‘in’ and what is ‘out,’ making it very difficult for our industry and other businesses to plan new projects and make hiring decisions…That means a whole host of economic activity in a community will not occur — all…in the name of protecting a ditch or farm pond.”

Fortunately, implementation of the rule is on hold after a federal court questioned its validity. Further litigation will determine whether it is struck down or allowed to move forward.

For information on burdensome state and federal-level regulations that lawmakers have passed over the years that have held back Maine’s economic growth, click here.