EPA Unconstitutional Acts

“Waters of the United States” — the ultimate power grab

Posted on November 11, 2014 Written by Reed Hopper, blog.pacificlegal.org

Com­ment from FA: “Cen­tral­ized con­trol over water and the abo­li­tion of pri­vate prop­erty rights to water are a core pur­pose of Agenda 21 pol­icy mak­ing. The exam­ples of a thrust toward this end from both fed­eral and state gov­ern­ments are accelerating.”

The Clean Water Act pro­hibits cer­tain dis­charges to “nav­i­ga­ble waters” with­out a fed­eral per­mit.  The Act defines “nav­i­ga­ble waters” as “waters of the United States” which the Corps and EPA orig­i­nally took to mean tra­di­tional nav­i­ga­ble waters that could be used in inter­state com­merce.  This is impor­tant because the Clean Water Act is based on the com­merce power.  By def­i­n­i­tion, reg­u­la­tion of waters under the Act must be nec­es­sary to and in fur­ther­ance of inter­state com­merce.  But it didn’t take long before the agen­cies started push­ing the enve­lope on fed­eral juris­dic­tion claim­ing reg­u­la­tory author­ity over wet­lands and other non­-nav­i­ga­ble waters that had noth­ing to do with com­merce, let alone inter­state commerce.

Things came to a head when the Corps asserted juris­dic­tion over small, remote pools that were wholly iso­lated from tra­di­tional nav­i­ga­ble waters.   The case went to the U.S. Supreme Court in SWANCC v. Corps (2001).  The court chas­tised the Corps for set­ting up a mov­ing tar­get for its juris­dic­tion and for­bade the Corps from reg­u­lat­ing “iso­lated water bod­ies.”  In sup­port of this deci­sion the court observed the reg­u­la­tion of non­-nav­i­ga­ble, intrastate waters would read the term “nav­i­ga­ble” right out of the Act and raise con­sti­tu­tional ques­tions about the scope of the com­merce power and State’s Rights.

Unfor­tu­nately, the case did not change agency prac­tice much.  The EPA and Corps con­tin­ued to reg­u­late non-n­av­i­ga­ble, intrastate waters and even expanded their juris­dic­tion claim­ing they could now reg­u­late any water with a hydro­log­i­cal con­nec­tion to tra­di­tional nav­i­ga­ble waters.  This lead to fed­eral reg­u­la­tion of typ­i­cally dry land fea­tures such as arroyos and washes in the desert as well as ditches, drains and cul­verts hun­dreds of miles from tra­di­tional nav­i­ga­ble waters.

In 2006, in a Supreme Court case called Rapanos v. United States, PLF chal­lenged the agen­cies’ juris­dic­tion as over­broad.  A major­ity of the court agreed with PLF that the gov­ern­ment had over­reached and the Corps and EPA could not reg­u­late a water merely because it has a hydro­log­i­cal con­nec­tion to down­stream nav­i­ga­ble waters.

How­ever, in April of this year, the Corps and EPA pro­posed a highly con­tro­ver­sial rule redefin­ing the term “waters of the United States” in a way that con­tra­dicts the SWANCC and Rapanos deci­sions.  Under the new rule, these agen­cies seek to reg­u­late “iso­lated water bod­ies” and any other water body with a hydro­log­i­cal con­nec­tion to tra­di­tional nav­i­ga­ble waters, the very waters the Supreme Court said the agen­cies could not regulate.

These agen­cies have rede­fined the term “waters of the United States” so broadly that it cov­ers vir­tu­ally any wet spot in the coun­try, includ­ing ditches, drains, inter­mit­tent streams, ponds, impound­ments, prairie pot­holes, and large buffer areas along every water­course.  Only minor water fea­tures are excluded from fed­eral con­trol, such as arti­fi­cial pools or ponds, but only if they are in dry, upland areas.

As we doc­u­ment in our com­ments oppos­ing the rule, the Corps and EPA’s self-serving rede­f­i­n­i­tion of “waters of the United States” is undoubt­edly the largest expan­sion of power ever pro­posed by a fed­eral agency. It would far exceed fed­eral juris­dic­tion, usurp the power of the States to man­age local land and water resources, nul­lify con­sti­tu­tional lim­its on fed­eral author­ity, and con­flict with Supreme Court prece­dent.  You can read our detailed analy­sis of the rule here.

This pro­posed rule is patently unrea­son­able and should be amended or with­drawn.  If it is not, you can count on PLF being in the courts again to hold overzeal­ous bureau­crats account­able to the rule-of-law.

Related Posts

• Future Earth: Agenda 21’s ‘For­bid­den Zones’
• Wild­lands Project, Agenda 21, and its Future Enforcers
• United Nations’ (U.N.) con­nec­tion to Agenda 21 and sus­tain­abil­ity and how it directly affects prop­erty owners.
• BACKGROUND TO THE WILDLANDS PROJECT
• Far-reaching “Waters of the United States” rule could be the most sig­nif­i­cant EPA reg­u­la­tion you have never heard about: opinion
• Prop­erty Rights at Stake in EPA’s Water Power Grab
  Source:http://agenda21news.com/2014/11/waters-united-states-ultimate-power-grab/
  Comments
  The EPA wants to take away your property rights and give your water to the UN. It is doing this with bogus regulations, based on junk science and soviet tactics in the name of “clean water”.  Add to that, huge daily fines in the thousands per day for noncompliance.
  We already have clean water, so let’s send the EPA to Africa where they don’t have clean water to see if they really know how to make clean water. Let’s get our states to nullify the clean water act in their states and bar the EPA from entry.  Our state EPDs are plenty qualified to work river water test and mitigation.
  Norb Leahy, Dunwoody GA Tea Party Leader