EPA Abuse, States should Nullify

Property Rights at Stake in EPA’s Water Power Grab

Posted on November 3, 2014 Written by dailysignal.com

Thanks to the fed­eral gov­ern­ment, it soon may become far more dif­fi­cult to use and enjoy pri­vate prop­erty. The Envi­ron­men­tal Pro­tec­tion Agency and the Army Corps of Engi­neers want to make a water—and land—grab that should scare everyone.

Under the Clean Water Act, the fed­eral gov­ern­ment has juris­dic­tion over “nav­i­ga­ble waters,” which the statute fur­ther defines as “the waters of the United States, includ­ing the ter­ri­to­r­ial seas.” Prop­erty own­ers often need to get per­mits if waters cov­ered under the law will be impacted. There­fore, a crit­i­cal ques­tion is what types of “waters” are cov­ered under the CWA. That’s what the EPA and Corps seek to address with a new pro­posed rule that would define “the waters of the United States.” As expected, the EPA and the Corps are seek­ing to expand their author­ity to cover waters never imag­ined when the Clean Water Act was passed in 1972.

For exam­ple, the new pro­posed rule would reg­u­late all ditches, except in nar­row cir­cum­stances. This even includes man-made ditches. The rule would apply to trib­u­taries that have ephemeral flow. This would include depres­sions in land that are dry most of the year except when there’s heavy rain.

There’s wide­spread oppo­si­tion to the pro­posed rule. Farm­ers and ranch­ers are con­cerned that the rule could affect nor­mal agri­cul­tural prac­tices. Home­builders could face addi­tional devel­op­ment costs that would likely be passed on to buy­ers. Coun­ties are con­cerned because of costly new require­ments that could impact munic­i­pal storm sewer sys­tems, road­side ditches, among other things.

This broad over­reach could have sig­nif­i­cant costs and delays for per­mit appli­cants. In Rapanos v. United States (2006), a major CWA case, Jus­tice Antonin Scalia cited a study high­light­ing the fol­low­ing costs and delays for one of the major types of per­mits (Sec­tion 404 per­mits), “The aver­age appli­cant for an indi­vid­ual per­mit spends 788 days and $271,596 in com­plet­ing the process, and the aver­age appli­cant for a nation­wide per­mit spends 313 days and $28,915—not count­ing costs of mit­i­ga­tion or design changes.”

 

If the EPA and Corps expand their author­ity over more waters, prop­erty own­ers will have to secure addi­tional per­mits. They will have to get per­mis­sion from fed­eral bureau­crats to enjoy and use their prop­erty because of waters that were never intended to be reg­u­lated under the CWA. If prop­erty own­ers don’t com­ply with the law, they could face civil penal­ties as high as $37,500 per day per vio­la­tion, or even crim­i­nal penalties.

In their crav­ing for more power, the EPA and Corps are ignor­ing a crit­i­cal aspect of the CWA: coop­er­a­tive fed­er­al­ism. Both the states and fed­eral gov­ern­ment are sup­posed to play a role in imple­men­ta­tion of the law. Yet, this power grab is an attempt by the fed­eral gov­ern­ment to push out state and local governments.

At the start of the CWA it states, “It is the pol­icy of the Con­gress to rec­og­nize, pre­serve, and pro­tect the pri­mary respon­si­bil­i­ties and rights of States to pre­vent, reduce, and elim­i­nate pol­lu­tion, to plan the devel­op­ment and use (includ­ing restora­tion, preser­va­tion, and enhance­ment) of land and water resources…” The EPA and Corps are pre­tend­ing that this impor­tant pol­icy doesn’t exist.

The EPA also had to ignore sound sci­ence and proper rule­mak­ing to move for­ward with its power play. The agency devel­oped a draft report enti­tled Con­nec­tiv­ity of Streams and Wet­lands to Down­stream Waters: A Review and Syn­the­sis of the Sci­en­tific Evi­dence. A Sci­en­tific Advi­sory Board was con­vened to peer review the study, which when final­ized would pro­vide the sci­en­tific foun­da­tion for imple­men­ta­tion of the rule.

 

How­ever, the EPA final­ized the pro­posed rule before the Sci­en­tific Advi­sory Board even met. The EPA defends this action by claim­ing that the final study will still help inform the final rule. But this is putting the cart before the horse (or the rule before the sci­ence). The sci­en­tific foun­da­tion should inform the pro­posed rule so that the pub­lic can pro­vide informed com­ments and have a mean­ing­ful voice in the process.

The pub­lic may be com­ment­ing on a pro­posed rule that seems to be a mere place­holder rather than a real pol­icy pro­posal, or more likely, a pro­posal that already reflects the final con­clu­sions of the EPA. The EPA has a strong incen­tive to avoid mak­ing major changes to the draft sci­en­tific report and, as a result, the final rule. If major changes are made, the EPA might be forced by law to restart the rule­mak­ing process over.

Con­gress is tak­ing notice. The House Trans­porta­tion and Infra­struc­ture Com­mit­tee passed a bill (H.R. 5078) that would pro­hibit imple­men­ta­tion of the pro­posed rule, and leg­is­la­tion (S. 2496) has been intro­duced in the Sen­ate to pro­hibit imple­men­ta­tion as well. In addi­tion, the FY 2015 House Inte­rior and Envi­ron­ment appro­pri­a­tions bill that passed out of the appro­pri­a­tions com­mit­tee includes a pro­vi­sion that with­holds funds for imple­men­ta­tion of the rule.

Ulti­mately though, it is the respon­si­bil­ity of Con­gress to define the term “nav­i­ga­ble waters” instead of defer­ring to the EPA and the Corps. His­tory shows these agen­cies will con­tinue to seek to expand their author­ity. As with other laws, Con­gress needs to reassert its author­ity and rein in agency over­reach. Pri­vate prop­erty rights are at stake.

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  Filed Under: Agenda 21, Property Rights, Water Rights
  Source: http://agenda21news.com/2014/11/property-rights-stake-epas-water-power-grab/
  Comments
  The EPA is scamming us. It’s a land grab required by UN Agenda 21 to make our property worthless.  Clean air and water do not require the draconian rules the EPA has published and are putting in effect.  For air, carbon is not a pollutant and for water, it is treated with sand filters and chlorine. Lake and river water pollution can be ended by forcing counties to maintain their sewer systems, so they don’t break and dump sewage into the rivers. We also need to continue common sense precautions we’ve been doing since we stopped pouring chemicals into the river. The East River no longer catches fire. These are solved problems.
  The EPA regulatory stranglehold also needs to back off at Nuclear Power Plants. States should look at the draconian, discombobulated procedures they are forced to obey and have state EPDs take over and straighten this mess out.
  State legislatures need to nullify the EPA rules before they go too far. Courts should allow the victims of this private property racket to collect millions from the federal government for allowing this treason.
  Norb Leahy, Dunwoody GA Tea Party Leader