It’s interesting how closely linked the EPA is to the U.S. Army Corps of Engineers. Do you want information on what constitutes a wetland, perhaps because you may just have one on your own property? Why the ACE has a Regional Supplement “which provides technical guidance and procedures for identifying and delineating wetlands that may be subject to regulatory jurisdiction under Section 404 of the Clean Water Act, or Section 10 of the Rivers and Harbors Act.” That’s especially interesting seeing this coming April, just in time for spring flooding, the EPA will come out with updated rules that will define which specific waterways the agency can regulate, cleaning up the details, if you will, of a Supreme Court ruling that was left, perhaps intentionally, vague. While it might be a touch paranoid to expect to hear the rumblings of an ACE convoy coming up your driveway in order to disembark, identify and delineate a possible wetland lurking somewhere on the land that you bought and paid for, the rule changes do mean that the EPA, and it’s partner the ACE, will have the regulatory power to define, and enforce, how your land, or at least the wetter part of it, is to be managed. And that will mean resources to do all that delineating and accompanying paperwork, and a part of your taxes going to fund those resources and all that additional paperwork.

Rep Lamar Smith, R-Texas, raised the warnings last summer and seems to be leading the charge against the proposed rule changes and the additional paperwork and cost they would almost certainly impose on private property owners as well as businesses. A series of EPA maps – whether they are detailed enough is debated by EPA spokespeople – gave the game away according to Smith, who fears that property rights will become even more conditional and subject to further EPA regulations. Will the Government’s considerable surveillance systems be used to map out the nation’s waterways, including small streams and temporary wetlands? Spy satellite data bases being cross referenced to nail down whether your land should be ground surveyed by Army Corps Engineers? It seems exaggerated, but hardly impossible. And if the EPA rule changes do lead to a rush to further survey and classify private property across the USA, you can be sure that a rush of legal challenges will also follow, perhaps ending up again on the doorstep of the Supreme Court. Whatever challenges to the EPA’s authority that SCOTUS then takes up will be, yes, a watershed decision. That’s because any EPA rule changes that broadly define streams and wetlands will be a further step towards including private land in the public commons. Clean water matters a lot, but a power grab by bureaucrats is an expensive, aggressive, and inefficient way of achieving, and especially enforcing, measurable progress on clean water. Let’s hope, against hope perhaps, that the EPA rule changes coming this April are reasonable and flexible.

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