A massive new power grab by bureaucrats in Washington that
would give them control of “practically every pond, stream and ditch in the
country” and the lands where they are is being challenged in court by a legal
team that already has taken on – and defeated – federal efforts to run rough-shod
over Americans with water rules.
The newest fight is against the Environmental Protection
Agency, the U.S. Army Corp of Engineers and others for their announcement, at
the end of June, to vastly expand the jurisdictional term “waters of the United
States” under the clean Water Act.
A lawsuit was filed by the Pacific
Legal Foundation because, as its principal attorney,
M. Reed Hopper, explained, “This new regulation is an open-ended license for
federal bureaucrats to assert control over nearly all of the nation’s water,
and much of the property, from coast to coast.”
Have a retention pond in a park? Could be subject the new
regulation. A low area where rain runoff from your neighborhood drains? Same
thing. Isolated puddles in a cow pasture? Look out.
In fact, Hopper said, “Under its vague and limitless terms,
the only waters that are clearly not subject to federal regulatory power are a
few that are expressly excluded in the Clean Water Act, including artificial
reflective pools, ornamental waters, some ground water, and gullies.”
Plaintiffs include the Washington Cattlemen’s Association,
California Cattlemen’s Association, New Mexico Cattle Growers Association, New
Mexico Wool Growers Inc., New Mexico Federal Lands Council, Duarte Nursery
Inc., Pierce Investment Co.’ LPF Properties and Hawks Co.
The Sacramento-based legal team said the Washington rule
“could bring virtually all the nation’s water and much of the land under direct
federal regulatory control” because “it sets no limit on the CWA’s reach.”
It explicitly expands federal control to waters that the
U.S. Supreme Court already has ruled “off-limits,” the team said.
The Clean Water Act, originally designated to protect
“navigable” waters such as rivers, lakes and oceans, would now include
“tributaries” no matter how small or remote, “neighboring” water without any
connections, and “even isolated waters that the Supreme Court has held to be
beyond CWA coverage.”
“In short, the administration is engaged in a sweeping power
grab,” Hopper said. “Property owners around the country will be faced with the
prospect of being micro-managed by federal bureaucrats. This turns our federal
system on its head. Under our constitutional framework, the states and
localities are charged with the primary role in land use regulation and local
water-quality protection.
“The Obama administration’s sweeping new rule usurps the
authority and responsibility of the states, and empowers bureaucrats in
Washington, D.C., to act as zoning and land use czars for the entire nation.”
Billy Gatlin, of the California Cattlemen’s Association,
said the rule is vague and creates confusion over what ranching activities
might, or might now, now be allowed.
Jose Varela of the new Mexico Cattle Growers Association
noted his family has been on his land for 14 generations.
14 generations.
“I believe we have the history to prove that we are
caretakers of the water and the land without the help of the Environmental
Protection Agency,” he said.
The complaint seeks declaratory judgments that the EPA’s
expansive claims to control of all tributaries, adjacent waters, interstate
waters, isolated waters and more is contrary to law and invalid.
It explains that the Supreme Court already has ruled that
the agencies can regulate some wetlands adjacent to navigable waters, but they
cannot take control of isolated water bodies or certain tributaries.
The EPA proposed the rule change in 2014, and made it final
on June 29, 2015.
If the rule change stands, the complaint explains,
“landowners” will be required to seek a federal permit, at a significant cost
perhaps of tens of thousands of dollars, to use their own property.
Lawsuits also have been filed over the past few days by 27
states challenging the EPA plan because it violates the Clean Water Act,
Supreme Court precedent and state rules in its action.
“The results of this rule will carry a tremendous cost to
our state, our economy, and our families,” South Carolina Attorney General Alan
Wilson said in a statement.
“The EPA’s proposed expansion would bring many roadside
ditches, small ponds on family farms, water features on golf courses, and storm
water systems under extremely burdensome federal regulation.”
States involved include South Carolina, West Virginia,
Alabama, Florida, Georgia, Kansas, Kentucky, Utah, Wisconsin, Alaska, Arizona,
Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico,
North Dakota, South Dakota, Wyoming, Ohio, Michigan, Texas, Mississippi and
Louisiana.
The Pacific Legal Foundation has taken on Washington’s
bureaucrats directly in the past, most notably in the Sackett case from Priest
Lake, Idaho. There a couple bought some land and, with building permissions,
started work on their dream home.
Along came the Environmental Protection Agency with a
determination that the parcel contained “wetlands” and gave the couple the
options to abandon their land, seek a prohibitively expensive permit or face
millions of dollars in fines.
The federal agency also contended the couple was not allowed
to seek a judicial review of its decision.
But
in a case assembled by the foundation, the Supreme Court ruled the EPA cannot issue a “drive-by” decision regarding
wetlands and then prohibit the owner from using the property or challenging the
decision.
The Supreme Court said the EPA must provide a process
through which a challenge to its decision can be addressed in a meaningful way.
The case was called a “precedent-setting victory for the rights of all property
owners.”
A legal team spokesman said at the time: “The justices have
made it clear that EPA bureaucrats are answerable to the law and the courts
just like the rest of us. EPA can’t try to micromanage people and their
property – it can’t order property owners to dance like marionettes – while
denying them any meaningful right to appeal to the courts. It can’t threaten
property owners with financial ruin and not have to justify its threats to a
judge. And it can’t issue lazy, drive-by ‘wetlands’ edicts about private
property.”
WND
reported earlier on the looming rule change,
when the PLF submitted comments to Washington warning of the dangers.
“On its face, the proposed rule covers virtually every water
in the nation,” the team told the government in a comment procedure in advance
of any final decision on the plan. “Under this rule, a prudent legal
practitioner would have to advise his client that the only waters not covered
are those few that are expressly exempt.”
The legal team warned, “If a water body isn’t a ‘traditional
navigable water,’ it is a ‘tributary.’ If it isn’t a ‘tributary,’ it is an
‘adjacent water.’ If it isn’t an ‘adjacent water,’ it is an ‘other water.’ All
of which are subject to onerous federal regulation.
“If it isn’t a water at all, it is still covered by the fine
print in Footnote 3 of the proposed rule that states the terms ‘waters’ and
‘water bodies’ ‘do not refer solely to the water contained in these aquatic
systems, but to the system as a whole including associated chemical, physical
and biological features.’”
Pacific Legal said the “seemingly innocuous language is
troubling because it can be interpreted to include runoff, dry land, man-made
structures, and flora and fauna.”
Source:http://www.wnd.com/2015/07/feds-sued-over-massive-water-rule-power-grab/
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