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JMI study: EPA’s new ‘Waters of the U.S.’ rule threatens to “micromanage” property owners

According to a new report released by the conservative James Madison Institute Wednesday, new federal regulations set to be implemented by the Environmental Protection Agency at month’s end could be a threat to the property rights of Floridians.

The study, entitled “‘Waters of the U.S.’: A Case Study in Government Abuse” comes as the EPA prepares to enforce new rules designed to clarify protections set forth in the 1972 Clean Water Act.

The JMI report, authored by attorneys M. Reed Hopper and Mark Miller, called the new rules “a coast-to-coast power play” designed to give the EPA and U.S. Army Corps of Engineers expanded authority over “with absurdly few exceptions, nearly any wet area” in the country.

“This expansion of federal power may be unrivaled in American federal regulatory history,” the report contends. “The agencies’ new rule exceeds federal jurisdiction and usurps the power of the States, including Florida’s right to manage local land and water resources. It nullifies constitutional limits on federal authority and its implementation puts virtually all waters and much of the land in Florida under the control of the Army Corps of Engineers and the EPA.”

In a release Wednesday, the Tallahassee-based libertarian think tank emphasized findings in the study that the revised rule “is very vague, leaving much to interpretation” such that owners or tracts near navigable waters may find it “difficult… to clearly understand, subjecting them to possible violations without being aware.”

In an online FAQ the EPA seeks to head off many of these criticisms, claiming the new clean water rules do not “create any new permitting requirements for agriculture,” “maintains all previous exemptions and exclusions,” and does not regulate most ditches or groundwater, contrary to some claims made in the new report.

Those claims come as cold comfort to the new report’s authors, who suggest that any water within 4,000 feet of a tributary or other covered water may now be subject to federal authority.

For those opposed the new regulatory regime, the authors suggest a challenge in the courts.

“With the legislative option highly unlikely, the remaining option is to oppose it judicially. Already the Pacific Legal Foundation (PLF), numerous business and agricultural groups, and 27 states have filed suits against the EPA and the Army Corps of Engineers seeking to shut down enforcement of the new rule before it begins,” write Hopper and Miller, who work as legal counsel for the PLF.

“If the implementation does begin as scheduled at the end of this month, Floridians should remain watchful and report negative impacts of the new rule to organizations like The James Madison Institute and PLF,” the report concludes.

Written By

Ryan Ray covers politics and public policy in North Florida and across the state. He has also worked as a legislative researcher and political campaign staffer. He can be reached at

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