Heads up: The EPA’s regulatory authority, coming to a stream or estuary near you?

posted at 5:21 pm on October 18, 2013 by Erika Johnsen

You may recall the egregiously costly saga of the Sacketts, the Idaho couple personally persecuted by the Environmental Protection Agency for developing their half-acre of lakeside private property that the EPA belatedly and arbitrarily deemed a “protected wetland.” The Sacketts fought the EPA’s demand that they either stop development and “restore” the property (with non-native plants!) or else face fines of up to $75,000 per day, but the EPA claimed that the Sacketts didn’t even have the right to seek judicial review against the EPA’s administrative compliance order, because the compliance order wasn’t their “final enforcement action” — which is basically made-up hogwash that roughly translates as, “We’re the EPA, we do what we want.” Long story short, the case made it all the way up to the Supreme Court, and the justices decided that the EPA cannot and should not engage in such “strong-arming of regulated parties” and that the Sacketts were certainly allowed to sue the EPA. Unanimous ruling. Boom.

Unfortunately, even though they can now sue, the Sackett’s tussle with the EPA over their small property continues unabated (“You would think that after beating them 9-0 that they would want to negotiate and get the thing done and let us get on with our life, but instead, we’re still dealing with the EPA in our life”), but their SCOTUS case has been one of several related to the Clean Water Act to make it all the way up to the high court in recent years. In September, the EPA finally made moves to, ahem, “clarify” Clean Water Act protections and nail down precisely what constitutes a protected wetland, via Roll Call:

The EPA took a giant step toward finally defining which bodies of water are subject to regulation under the Clean Water Act last week, when it filed a draft rule with the White House regulatory czar designed to settle the confusion created in recent years by a series of court decisions.

The legal battles have centered on the definition and scope of a seemingly innocuous phrase — what exactly are “waters of the United States”?

Judges and regulators have wrestled over how to interpret the term in the absence of legislative action to clarify it. Now, the EPA is not only proposing a regulatory solution — which is not yet publicly available — but is also conducting a scientific review to accumulate evidence to back up the penultimate rule.

That approach to implementing the Clean Water Act (PL 95-217) is the latest example of the Obama administration’s philosophy on environmental policymaking: Act when Congress doesn’t and take steps to shore up the approach against future legal challenges.

As the Sackett case so aptly demonstrates, however, this is the EPA we’re talking about, and they don’t tend to half-ass this kind of thing. Their rather wanton history of grabbing more authority for themselves via obscure rulemaking is a well-documented phenomenon, and the GOP is on it:

Republican leaders of the House Science Committee are accusing the Environmental Protection Agency (EPA) of rushing a rule to establish broad authority over streams and wetlands.

In a letter to the agency on Friday, Reps. Lamar Smith (R-Texas) and Chris Stewart (R-Utah) alleged that it is trying to initiate a “sweeping reinterpretation” of its jurisdiction in a potential new rule.

The regulation to expand the EPA’s oversight would give it “unprecedented control over private property across the nation,” they asserted. …

“In light of the significant implications this action would have on the economy, property rights, and state sovereignty, this process must be given more thought and deliberation to allow for important, statutorily-required, weighing of the scientific and technical underpinnings of the proposed regulatory changes,” Smith and Stewart wrote on Friday.

The EPA has yet to unveil their plans to the public, but the never-ceasing vigilance it takes to keep their regulatory agenda in check truly boggles the mind.


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We have to win every time. The EPA, like their allies who bow to Mecca, have to win only once.

Steve Eggleston on October 18, 2013 at 5:25 PM

Heads up: The EPA’s regulatory authority, coming to a stream or estuary near you?

Stream or estuary?

If these progressive-enviro-fascists thought they could get away with it, they would use a water puddle on your property after a rain shower to exercise their regulatory authority.

Athos on October 18, 2013 at 5:26 PM

Beware the man with nothing to lose.

wheelgun on October 18, 2013 at 5:26 PM

Don’t worry we’ll fix this the next election just like everything else.

bgibbs1000 on October 18, 2013 at 5:28 PM

Stealth implementation of Agenda 21 by making it more and more difficult to develop undeveloped land?

The GOP needs to stop whining about the EPA’s overreach and do something about it like, you know, cut its budget!

Charlemagne on October 18, 2013 at 5:29 PM

These people are cuckoo. I have a stream full of flood debris that I can’t clean out thereby causing more flooding because of some damn fish. About 6 guys came here to look and told me to dig a trench in my backyard to deal with the overflow. When it floods it’s like 3′ deep of water all along the creek sides not just my backyard. I laughed at him. He was a real nitwit.

vityas on October 18, 2013 at 5:31 PM

When I was in law school the Clean Water Act only applied to “navigable waterways” which was broadly understood as waterways in which commercial shipping was viable. All other waterways were subject to state regulatory authority.

I know the EPA hates that limitation on their authority to seize state sovereignty and private property. So they’re now using administrative fiat to ignore it and seize massive property interests. Can I call them tyrannical now!?!

This has terrifying implications. The end result being “you have a pond on your property? Then you’ll do what we tell you to do with your land. And, oh by the way, your land is now worthless because no one in their right mind would purchase land with such a massive legal encumbrance.”

Scary stuff people.

Meric1837 on October 18, 2013 at 5:35 PM

If these progressive-enviro-fascists thought they could get away with it, they would use a water puddle on your property after a rain shower to exercise their regulatory authority.

Athos on October 18, 2013 at 5:26 PM

I think that’s been done.

iurockhead on October 18, 2013 at 5:38 PM

The EPA hates the fact that property owners are squatting on their land.

antipc on October 18, 2013 at 5:43 PM

I think that’s been done.

iurockhead on October 18, 2013 at 5:38 PM

Yup

iurockhead on October 18, 2013 at 5:44 PM

When I was in law school the Clean Water Act only applied to “navigable waterways” which was broadly understood as waterways in which commercial shipping was viable. All other waterways were subject to state regulatory authority.

Meric1837 on October 18, 2013 at 5:35 PM

Apparently we are both confused. I thought “navigable waterways” had been defined well over 100yrs ago as a stream which would float a log.

Either way its was never supposed to be a damp spot in the yard after a light rain.

CW20 on October 18, 2013 at 5:47 PM

Yeah, we just got a letter from our local water/sewer provider, informing us that our water and sewer rates will *double* over the next 10 years in order to pay for EPA-mandated equipment to make our local river cleaner.

Mohonri on October 18, 2013 at 5:51 PM

In CA, smart property owners do not allow tules to get established on their property because the state will designate that area a wetland complete with a buffer zone. Wetlands are more sacred than Indian burial here.

antipc on October 18, 2013 at 5:56 PM

Met a guy not too long ago in Ohio who fell victim to this. He bought a piece of land to build a house. The neighbor to the west absolutely would not sell him a right of way to the home-site, so the only other option was a driveway twice as long and over a creek. A bit more hassle, but not a big problem, right?

Wrong. The stream is quite a typical Ohio stream. Most streams this size don’t even have names… small enough to jump over, mostly ankle-deep. So you expect a culvert will do? No. This is a “national estuary.” You cannot build and structure which touches the water. You cannot build a structure that touches the banks of the stream. THE MAN HAD TO BUILD AN 80-FT STEEL AND CONCRETE BRIDGE TO BE IN COMPLIANCE.

Glenn Jericho on October 18, 2013 at 5:58 PM

If these progressive-enviro-fascists thought they could get away with it, they would use a water puddle on your property after a rain shower to exercise their regulatory authority.

Athos on October 18, 2013 at 5:26 PM

I think that’s been done.

iurockhead on October 18, 2013 at 5:38 PM

Yes, in fact it doesn’t even have to be a wet puddle or a ditch with water in it. It can be a depression, swale of flat area that simple doesn’t drain very well. If it holds water long enough after rains “indicator species” may grow in it. In which case it’s liable to be pegged as “wetlands”, in which case you essentially no longer own those areas, but you’ll still have the privilege of paying property tax on the acreage.

forest on October 18, 2013 at 6:02 PM

Defund epa in the next budget, er CR.

tim c on October 18, 2013 at 6:02 PM

CW20 on October 18, 2013 at 5:47 PM

Ok, you made me look it up:

Gibbons v. Ogden, 22 U.S. 1 (1824). In Gibbons, the Court was faced with deciding whether to give precedence to a state or federal law for the licensing of vessels. It ruled that navigation of vessels in and out of the ports of the nation is a form of interstate commerce and thus federal law must take precedence. This decision led to the contemporary exercise of broad federal power over navigable waters, and in countless other areas of interstate commerce.

So basically, where interstate commerce is concerned, it’s federal. That’s where I was getting the “commercial shipping” thought from, but it would include general waterway transportation (between states) too. That case was for the licensure of vessels but all reasoning for state/federal authority over waterways stem from that case. There are several other cases that define it further, but that’s the quick and dirty version.

I don’t practice water law on a day-to-day basis so anyone can feel free to jump in here if I’m mistaken.

Meric1837 on October 18, 2013 at 6:09 PM

In other words; If it is water and wet, it belongs to the Federal Government.

Johnnyreb on October 18, 2013 at 6:17 PM

The EPA’s definition of “wetland” at least as interpreted by local EPA types seems to depend whether the developer has the right political connections.

Nomas on October 18, 2013 at 6:22 PM

Yes, in fact it doesn’t even have to be a wet puddle or a ditch with water in it. It can be a depression, swale of flat area that simple doesn’t drain very well. If it holds water long enough after rains “indicator species” may grow in it. In which case it’s liable to be pegged as “wetlands”, in which case you essentially no longer own those areas, but you’ll still have the privilege of paying property tax on the acreage.

forest on October 18, 2013 at 6:02 PM

That is literally half of my fenced in yard after a good soaking rain. Sometimes we have standing water for 3 days after a downpour.

Johnnyreb on October 18, 2013 at 6:23 PM

Only facts stand in their way.

http://www.wattsupwiththat.com

Together with the Esst Anglia Universiy e-mails, the Hockey Stick Fraud and

http://www.arapahoebasin.com/ web cams of the snow and people in line to ski Oct. 18, 20013

Together with the need of CO2 to feed the plants who feed all of us.

Fracking, drill, and only the fit live on. Nothing has changed that muc other than lies now kill more and faster.

APACHEWHOKNOWS on October 18, 2013 at 6:34 PM

The EPA has yet to unveil their plans to the public

Why should they? It’s not like this is ‘the most transparent administration, evah!’

GarandFan on October 18, 2013 at 6:34 PM

EPA is the new spelling of USSR

APACHEWHOKNOWS on October 18, 2013 at 6:38 PM

Earth First don’t ya know.

APACHEWHOKNOWS on October 18, 2013 at 6:39 PM

Obamadon’tcare.
Amnestyforall.
EPAownsyou.
you will bow to
commie democrats
if not the RINO’s will
go on CNN and call you names.

APACHEWHOKNOWS on October 18, 2013 at 6:41 PM

During the drought of ’87 in Pa, my 2 acre pond dried up. A man-made pond to water cattle in the ’30′s. Back when it was a working farm, not my 71 acre game preserve that it is now.
The EPA tried to fine me for denying water to people downstream?????WTF! They wouldn’t let me bulldoze off the 4′ of sentiment off the bottom to help prevent this from happening again. They even took the #’s off the hour meter on my dozer, in case is di-obeyed their “authoritay”!

hutch1200 on October 18, 2013 at 6:47 PM

The Romans had a way to discipline unruly troops that out to be considered here: decimation.

It could be highly instructive to EPA bureaucrats.

MTF on October 18, 2013 at 7:05 PM

Now you know why the EPA has been arming themselves and buying all that ammo…folks in my neck-off-the-woods shoot back.

Wyznowski on October 18, 2013 at 7:14 PM

Well they had better hurry up and publish the damn rules. I gotta go, and I am PRETTY sure my toilet isn’t navigable.

WryTrvllr on October 18, 2013 at 7:54 PM

My brother and I owned a parcel of land in a semi-rural area. The local eco-nuts decided that we shouldn’t be allowed to build on it, so they filed an action with the EPA claiming our property was the last known habitat of an endangered salamander and that our property had diurnal puddles that warranted protection. (Yeah, I had to look that up too.)

It took 24 months for the official taxpayer funded habitat survey and salamander census to be conducted in the county and absolve us of the crime of wanting to develop our property. We sold it as soon as possible and swore never again to buy raw land.

(Luckily for us, the market rose during our non-discretionary holding period and saw the parcel triple in value! Thank you eco-nuts!! Laughed all the way to the bank!)

in_awe on October 18, 2013 at 10:22 PM

In other words; If it is water and wet, it belongs to the Federal Government.

Johnnyreb on October 18, 2013 at 6:17 PM

Or the State of Maryland, who is now taxing rain.

BobMbx on October 18, 2013 at 11:09 PM

The EPA is just one of the 1300 federal agencies funded by our tax money and you may see them printed out for you by googling, (list of government agencies). They are in alphabetical order but as you read them note the titles of some of these entitlement programs for the friends and families of the politicians.

mixplix on October 19, 2013 at 5:45 AM

You people BETTER start calling for EPA being put on a leash or your going to loose more privacy and property rights. The days of letting federal agencies do what-ever they want is over.

TX-96 on October 19, 2013 at 6:26 AM

Let’s see, on the way to work I drive across four bayou’s, three draws, two creeks and a river, and it is only 30 miles. I guess the damn epa is coming for my house next.

georgeofthedesert on October 20, 2013 at 6:58 PM