Conservatives, developers, and builders have long bristled over what they see as the expanding and intrusive role of the EPA in its enforcement of the Clean Water Act. Central to this debate has been the 2006 Supreme Court’s opinion in Rapanos vs. U.S. Army Corps of Engineers, which left vague what tests the EPA and the Corps must use to determine the aquatic features that qualify as “traditional navigable waters” (TNW) that trigger permitting requirements.

Action Items

On Feb. 16, Sen. Rand Paul (R-Ky.) proposed a bill (S.2122), whose stated goal is to clarify the definition of TNWs, but would also scale back the EPA’s regulatory power. His bill calls for:

  1. A predictable definition of “navigable waters” and federal authority.
  2. Excluding “ephemeral and intermittent streams” from federal control.
  3. Preventing the Corps and the EPA from reinterpreting the definition of “navigable waters” without congressional approval.
  4. Returning control over local water and land use to the states.
  5. Prohibiting federal trespass onto private property and requiring compensation for loss of use and value of private property.