Newsletter - June 2015

IS YOUR POTHOLE A NAVIGABLE WATERWAY?

Because of the lack of education and reporting many Americans do not understand that we have been moving to government run by unelected bureaucrats.  People are appointed (not elected) to government bureaucracies and as that bureaucracy grows more and more regulations affect the average citizen.

The Environmental Protection Agency (EPA) was established on December 2, 1972.  The first and major charge of the agency was dealing with pollution and waste.  Things have changed.

The EPA issued guidelines to assist EPA Regional Offices and States in developing or revising State water quality standards as required by the new water law which was enacted in October 1973.  The guidelines said that water quality standards should be designed to enhance the quality of water.

Mr. Obama and his EPA administrator Gina McCarthy are committed to expanding the government’s role in our lives.  In line with this goal, the EPA has rewritten the Clean Water Act that extends federal jurisdiction over tens of millions of acres of private land.

The Clean Water Act is clear that the federal government is limited to regulating the “navigable waters of the United States” such as the Colorado River or Lake Michigan.  In 1986, the EPA expanded that definition to include seizing jurisdiction over tributaries and adjacent wetlands.  Currently if a creek, pond, prairie pothole or muddy farm field has a “significant nexus” to a navigable waterway then the EPA has control.

In the new rule, the EPA defines waters as “significant” if they are “located in whole or in part within 100 feet of the ordinary high water mark” or alternatively, within the 100-year floodplain and 1,500 feet of the high water mark of waters already under the government’s jurisdiction.

The EPA says its “experience and expertise” show that there are “many” other waters that could have a significant downstream effect.  Therefore, the EPA has established an additional standard for significance that covers just about anything that is wet.

In the new rule, the EPA can also regulate waters within the 100-year floodplain and  4,000 feet of their claimed areas that “in combination” have a significant effect.  The example given is that the pothole on farmer John’s land may not affect downstream waters but the government could still regulate Farmer John’s pothole if regulators determine that prairie potholes collectively do.

In 2006, a Supreme Court case titled Rapanos v. U.S. dealt with a Michigan landowner.  The Army Corps of Engineers had wanted to send the landowner to prison because he had not obtained permits to move dirt on a sometimes-saturated piece of land, which was connected to a drain, which ran into a shallow creek, which flowed into the Kawkawlin River, which emptied into Saginaw Bay and Lake Huron.

Four Supreme Court Justices explained that “waters of the United States” could not possibly apply to the man’s land that was 11 to 20 miles away from the nearest “navigable” waterway.

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Unfortunately, Justice Kennedy argued that federal agencies could regulate wetlands on a “case-by-case basis” with a “significant nexus” to navigable waterways.  That is, wetlands which “either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical and biological integrity of other covered waters more readily understood as “navigable.”

Justice Kennedy’s opinion deprived lower courts and property owners of clarity to navigate the Clean Water Act.  Bureaucrats leap at unclear rulings because it gives them an opportunity to make more rulings and have more power.

Therefore, the EPA notes that under “current regulations and practice following these recent decisions, almost all waters and wetlands across the country theoretically could be subject to a case-specific jurisdictional determination.”

Who is fighting this regulation:  Farmers, Manufacturers, Home Builders and Energy Companies.  Their argument is that people are being denied productive use of their property. It appears that the takings clause in the Constitution is being violated.

The EPA’s proposal in the new rule to define “waters of the United State” is to include almost any type of water.  Man-made ditches could be regulated.  A large hole on a property that fills up only during the rainy season could be deemed a tributary and come under the new rule even if the hole is bone-dry the rest of the year.

The bigger worry is that activities such as farming and building houses would require a permit. In 2012, the EPA wanted to impose fines of $75,000 a day on a couple who placed gravel on virtually dry land so they could build a house in a subdivision.  Fortunately, the Supreme Court in a 9 to 0 decision ruled in favor of the couple.  The case was Sackett v. U.S.E.P.A.

The other very important issue is that the states’ role in protecting water resources is being taken over by the federal government.  Ironically, the Clean Water Act stressed the role of the states in protecting water resources.

So far, five Democrat Senators have supported a nonbinding amendment to block the EPA’s latest rule.  Earlier, 24 House Democrats joined 237 Republicans to vote to pre-empt the land water grab.