Clarity!” has been the battle cry of the EPA over the last year as it put the final touches on its expansive and overreaching definition of “waters of the United States” (or “WOTUS”). And yet, a week after the final rule was published, the only clarity the EPA has provided is its intent to snatch up every piece of land that can channel, pool, or absorb water and include it within its newly minted jurisdiction.
The effects of this rule are both far-reaching and disastrous. Tributaries make up only one aspect of this unconstitutional overhaul of the Clean Water Act, but they provide useful insight into the impractical mind of the EPA.
The amended definition of a “tributary” will expand the EPA’s dominion to ephemeral flows — or, as an ordinary person might know them, dry lands where water sometimes flows after heavy rains — as well as many common drainage ditches. If a tributary contributes any flow at all, regardless of frequency or volume, to a downstream water, it is now within the EPA’s purview.
Practically, this means that the average drainage ditch, the channels between rows of planted crops, and the land beneath the crudely formed streams from the torrential rains that carried away portions of central Texas over the last several weeks are now all subject to federal jurisdiction if water from them can be carried downstream at any point. To build one’s home, to plant crops as a means of livelihood, to erect a fence or build a road, the average person will now need to seek a permit from the Corps of Engineers.