Federal Water Seizure

A vast land grab to ‘protect’ water Posted on December 17, 2014 Written by William Perry Pendley, washingtontimes.com ANALYSIS/OPINION

In Novem­ber, com­ments closed on a pro­posal by the Envi­ron­men­tal Pro­tec­tion Agency and the U.S. Army Corps of Engi­neers to rede­fine “waters of the United States,” as set forth in the Clean Water Act of 1977. While Sen. Edmund Muskie, Maine Demo­c­rat, author of the 1977 law, required 88 pages for his entire statute, this spring’s Fed­eral Reg­is­ter notice ran 370 pages, not count­ing appen­dixes, one of which hit 300 pages alone. Lit­tle won­der the new “wet­land” rules have gen­er­ated con­tro­versy and a likely Supreme Court case.

Over the years, the EPA and the Corps of Engi­neers read “waters of the United States,” and hence their author­ity to reg­u­late pri­vate prop­erty, both broadly and ambigu­ously. Unfor­tu­nately for landown­ers in their crosshairs, their inter­pre­ta­tion is rem­i­nis­cent of Jus­tice Pot­ter Stewart’s views regard­ing hard-core pornog­ra­phy, “I know it when I see it.” Worse yet, such a sight­ing is fol­lowed by a cease-and-desist order vio­la­tion of which results in fines of tens of thou­sands of dol­lars a day, and dou­ble that if the vio­la­tion is “will­ful.” Worst of all, landown­ers could not chal­lenge those orders because they remained “unen­forced” until violated.

For exam­ple, when the EPA declared arid lands owned by Dr. Larry Squires of Hobbs, New Mex­ico, “waters of the United States” because birds landed in ponds cre­ated by spo­radic heavy rains, Dr. Squires chal­lenged the order; but, his law­suit was dis­missed as untimely. A fed­eral appeals court ruled his inabil­ity to ques­tion whether his lands were “wet­lands” with­out pay­ing hun­dreds of mil­lions of dol­lars in fines or going to jail was not “con­sti­tu­tion­ally intol­er­a­ble” given that it would “under­mine the EPA’s reg­u­la­tory author­ity.” For­tu­nately, in 2012, the Supreme Court unan­i­mously ended this abuse in a law­suit by the Pacific Legal Foundation.

Nonethe­less, tar­geted landown­ers did reach the Supreme Court. In 1985, decid­ing at which point “water ends and land begins,” the Court upheld a def­i­n­i­tion that included wet­lands that “actu­ally abut on” tra­di­tional nav­i­ga­ble waters. In 2001, the Court held that “non-navigable, iso­lated, intrastate waters,” even those used by migra­tory birds (remem­ber Dr. Squires) were not within the Clean Water Act.

In 2006, rul­ing on whether the Clean Water Act included intrastate wet­lands adja­cent to non-navigable trib­u­taries of nav­i­ga­ble waters, the Supreme Court vacated the rules of the Army Corps of Engi­neers. On behalf of a four-member plu­ral­ity, Jus­tice Antonin Scalia required “con­tin­u­ous sur­face con­nec­tion to bod­ies that are ‘waters of the United States’ in their own right,” but Jus­tice Anthony M. Kennedy, while con­cur­ring in strik­ing down the rules, demanded “a ‘sig­nif­i­cant nexus’ to waters that are or were nav­i­ga­ble in fact or that could rea­son­ably be so made.”

In 2007, the EPA and the Corps of Engi­neers responded to the court’s rul­ings and in late 2008, after the receipt of 66,000 com­ments, issued new guid­ance on iden­ti­fy­ing “waters of the United States.” Then, in 2011, the two agen­cies pro­posed guid­ance that expanded sig­nif­i­cantly the reach of the Clean Water Act, includ­ing over ver­nal pools, prairie pot­holes, nat­ural ponds and playa lakes. In response to 230,000 com­ments, many of which demanded a for­mal rule-making, the agen­cies issued that pro­posal in April.

Liv­ing up to its rep­u­ta­tion for cre­at­ing, as lib­eral law pro­fes­sor Jonathan Tur­ley put it, “a con­sti­tu­tional tip­ping point,” the Obama administration’s new rules con­sti­tute a his­toric land grab. Con­trary to Jus­tice Kennedy’s instruc­tion, the rules: extend to all waters (not just wet­lands) and all waters adja­cent to non-navigable inter­state waters; cre­ate a juris­dic­tional con­cept “sim­i­larly sit­u­ated waters” by mis­quot­ing the jus­tice; and ignore his demand that an agency “estab­lish nexus on a case-by-case basis when it seeks to reg­u­late wet­lands based on adja­cency to non-navigable tributaries.”

Worse yet, in vio­la­tion of the Constitution’s com­merce clause, they assert author­ity over waters that are nei­ther instru­men­tal­i­ties nor chan­nels of inter­state com­merce and that do not sub­stan­tially affect inter­state commerce.

Over its past six years, the Supreme Court has ruled unan­i­mously against the Obama administration’s posi­tion on 20 occa­sions. These new wet­land rules may make 21.

• William Perry Pend­ley, a lawyer, is pres­i­dent of Moun­tain States Legal Foun­da­tion in Denver

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  Filed Under: Agenda 21, Natural Resources, Property Rights, Water Rights, Wildlands Network
  Source: www.Agenda21News.com
  Comments
  These proposed federal regulations are the first step in the federal government seizing ownership of all water, rendering all property values worthless.  The UN has already claimed ownership of US water.  Our federal government is not above granting it to them, so they can tax Americans for their own water.  This is treason.
  Norb Leahy, Dunwoody GA Tea Party Leader