"Waters of the USA" rule and burdening property owners
Another chink in the property rights' armor
VALDOSTA, GA—The issue is now joined and an epic battle of
wills has erupted between the people’s elected representatives in Congress and
the Executive Branch’s appointed administrators in the Environmental Protection
Agency. The former insists on the rule
of law; the latter on the rule of regulation without regard to any law.
The battle is over the “Waters of the USA” rule, first
proposed last summer, set to take effect
within the next 60 days. The rule seeks
to redefine and expand the term “navigable waters”. The description is important because it
limits the reach of the EPA under the Clean Water Act, passed by a Democrat
controlled Congress and signed into law by a Republican president, Richard
Nixon, in 1972. As originally intended,
the EPA could only regulate those waters that were interstate in nature, not
“Among the reasons [for such a limitation], Congress did not
want EPA bullying farmers over small depressions in their land that
occasionally hold rainwater, bullying people who dig a ditch to help drain
their land, and using the smallest of streams and micro-bodies of water to
restrict property use,” said Jay Lehr, science director for the Heartland
Institute. Lehr added, “EPA is
attempting to stand the CWA on its head as it continues to seek more money and
Imagine that. A
federal bureau seeking more money and power.
The revised rule redefines which bodies of water are subject
to federal regulation and would now include “all tributaries, adjacent waters,
wetlands and other waters.” That ditch in your backyard that sometimes after a
rain has enough water to flow into a stream, which empties into a creek, which
runs into a river would be subject to regulation under the rule.
Get a permit from the Army Corps of Engineers before you dig
out any accumulated silt. Or else.
The CWA allows the EPA to issue administrative orders
against violators, and seek civil or
criminal penalties when necessary. For
example, a first offense of criminal negligence, the minimum fine is $2,500,
with a maximum of $25,000 fine per day of violation. A violator may also receive
up to a year in jail. On a second offense, a maximum fine of $50,000 per day
may be issued.
Thus, one can be fined and imprisoned not for transgressing
a law but an administrative rule.
WOTUSA, however, elucidates more than just a money and power
grab by a federal agency, it illustrates the sheer arrogance of an
administration and an agency
Obama’s EPA is defying recent Supreme Court rulings against
it regarding its definitions of “navigable” and “interstate” waters. They have
been told at least twice in the last 15 years that the proposed WOTUSA
definitions, or similar definitions seeking to control otherwise non-regulative
waters, were overly broad. For this
legal limitation they have no regard but disdain.
2001 the Supreme Court ruled in SWANCC v. U.S. Army Corps of Engineers that the
EPA could not regulate intrastate waterways because migratory birds might use
them. The court held, in part, “The term
'navigable' has...the import of showing us what Congress had in mind as its
authority for enacting the CWA: its traditional jurisdiction over waters that
were or had been navigable in fact or which could reasonably be so made."
And again, in Rapanos v. US (2006) the court held that “the
definitional term ‘waters of the United States’ can only refer to relatively
permanent, standing or flowing bodies of water, not occasional, intermittent,
or ephemeral flows. Furthermore, a mere ‘hydrological connection’ is not
sufficient to qualify a wetland as covered by the CWA; it must have a
continuous surface connection with a water of the United States that makes it difficult
to determine where the 'water' ends and the 'wetland' begins."
The Obama Administration is once again proposing job killing
rules that would require construction companies, farmers and other real estate
intensive enterprises, the vast majority of which are family owned, to obtain
expensive, time consuming CWA permits not previously required.
In Georgia alone, the rule would put an additional 40,000
miles of Georgia streams under federal control.
Should that happen, then roughly 57 percent of all Georgia waterways
would be subject to direct federal regulation.
That’s a lot of intrastate water controlled by an act intended to affect
only interstate waterways.
Although 33 states, the National Association of
Homebuilders, the American Farm Bureau, and 200 other groups have opposed the rule,
the EPA is moving forward without
regard to the costs or property rights at risk.
WOTUSA is the government’s divining rod to find and use water as a way to
transfer more property rights away from the private landowner and reinvest
those rights in the regulators. They
will not willingly let it go.
The US House of Representatives, recognizing this
breathtaking overreach, has passed bipartisan legislation seeking to block the
rule’s implementation. Similar measures
are moving through the Senate. Obama, for his part, has vowed a veto.
Rep. Lyn Westmoreland (R-GA) probably said it best, “Telling
farmers that the water on their property is now federally regulated and subject
to fines tramples on property rights and is exactly the kind of abuse of power
our forefathers warned against.”
While the congressman is right, merely reining in the EPA on
a case by case basis simply isn’t enough.
Congress must reclaim its rightful and exclusive power to legislate federally
and insist that its laws, and only its laws, are implemented and executed.
And unless and until that is done, the Congress may well
find itself regulated—and relegated--into irrelevancy.
Wisenbaker, B.A., J.D. is a
native of South Georgia where he practiced law in Valdosta and Savannah for 31
years. He has served as state chairman of the Georgia Young Republicans and
Chairman of the Chatham County (Savannah) Republican Party. Gary is a past GOP
nominee for State Senate, past delegate to the Republican National Convention
and has consulted on numerous local Republican campaigns as well as chaired or
co-chaired campaigns for President and US Senate on the county and district
level. He is the principal and founder of Blackstone, LLC, a corporate
communications and public relations concern as well as Wiregrass Mediation
Services, LLC, a general civil litigation mediation firm.
Gary recently published his first fictional work, “How Great is His Mercy: The
Plea”, on Amazon.com. His opinions are
regularly published on ValdostaToday.com and Zpolitics.com.
© 2015 Gary M. Wisenbaker. All rights reserved. Gary M. Wisenbaker is the sole copyright holder of this blog site. By posting content to this blog, you agree to transfer copyright to the blog owner.