HCR1: Resisting Federal Takeover of Water in Utah

This bill passed the House 64-9 and passed the Senate 22-4.

Libertas Institute supports this bill.

Recently the EPA finalized a new administrative rule to redefine “Waters of the United States” under its regulatory jurisdiction in a broad and expansive way. This attempted federal takeover of waters in the various states violates federalism and would vastly expand federal power over private property.

In a policy brief earlier this year, we explained the problems associated with this rule and proposed that the legislature should pass a resolution resisting this rule. House Concurrent Resolution 1, sponsored by Representative Mike Noel, declares the legislature’s opposition to this unlawful exercise of regulatory authority. The resolution also declares the legislature’s support of Attorney General Sean Reyes’ joining other states in a lawsuit on the issue.

Traditionally, the federal government’s regulatory jurisdiction over water under the Clean Water Act is predicated on their authority under the Commerce Clause to regulate interstate commerce. This means the EPA exercises regulatory oversight on environmental issues for navigable interstate waterways. Under this new rule, the EPA has redefined these waters such that the agency’s regulatory reach could touch non-navigable intrastate waterways and the wet lands adjacent to them. If upheld, this rule could require a land owner to seek permission from the federal government for even the most mundane construction or agriculture projects. The federal permits required by the EPA for some projects can run into the hundreds of thousands of dollars for compliance.

The threat to local property owners and local industry by this rule cannot be understated. One member of Congress called it the “biggest land grab in history.” This rule represents the very worst fears of an out of control federal bureaucracy and would set the federal government’s regulatory power on a path that could give it limitless power to micromanage land decisions across the country.