Some of the biggest Environmental Protection Agency abuses of property rights (see last term’s Sackett case and this term’s Koontz case) stem from expansive interpretations of the Clean Water Act. The EPA imposes huge costs on people who want to do anything on their property, claiming the agency has the authority to regulate “wetlands.” The agency is only supposed to have authority to regulate discharges to “navigable” waters, but the jurisprudence here is so confused that it’s become an area ripe for federal overreach. This week a group of Republican senators (Rand Paul, Mike Lee, Marco Rubio, David Vitter, and Mitch McConnell) introduced a bill that’s an excellent step to addressing the federal government’s endemic property rights violations. The Defense of Environment and Property Act of 2013 does a number of very good things:
- Narrows the definition of “navigable waters” to waters that are “navigable-in-fact” or “permanent, standing, or continuously flowing bodies of water … that are connected to waters that are navigable-in-fact,” with explicit exclusions for such things as rainfall drainage channels and wetlands without a continuous connection to “waters of the United States”;
- Directs that the EPA and Army Corps of Engineers shall not impinge on the primary power of states over land and water use;
- Gives landowners judicial review in federal court within 30 days of any claim of federal authority over their land or water resources;
- Makes clear that ground water is state, not federal water;
- Eliminates the so-called “signficant nexus test” that the EPA often uses to assert jurisdiction over otherwise non-federal lands;
- Strikes down various regulations and agency guidances;
- Requires a landowner’s consent before federal agents can enter his property to collect information regarding navigable waters;
- Defines as a regulatory taking any loss of value of land due to navigable-water-related regulation and compensates the landowner twice the value of that loss.
