EPA rules ‘Waters of the U.S.’ threatens all private property

by Craig Masters

Under the EPA proposed new Waters of the U.S. rule, not one single acre in America is safe from the exact kind of federal trooper confrontation which took place this past week in Bunkerville, Nevada.  Using the concept of “protecting clean water” every dictator in history would be envious of the latest Obama administration effort at destruction of Private Property Rights. Make no mistake about it, this rule will enable federal control of every square inch of rural land in America quicker than a flash flood in west Texas.

“The ‘Waters of the U.S.’ rule may be one of the most significant private property grabs in U.S. history,” said Louisiana Republican Sen. David Vitter.

Senator Vitter continued to express his belief that based on the record of federal abuse of EPA regulations, and the clearly unfinished peer review of the agency’s science behind a confusing connectivity report, Vitter sees this bureaucrat written “law” as another “step toward outright permitting authority over virtually any wet area in the country.” He also warns us that this de facto land grab opens the doors to federal courts for environmental groups to sue private property owners.

The EPA argues that even tributaries which are man-made could fall under EPA authority, this includes ponds, canals, impoundments and ditches. The basis for the EPA to claim permitting authority over any property through which water flows, has flowed in the past, or could flow in the future is the determination by the EPA that if the water was, did, or could flow in such a manner as to have a significant nexus to traditional navigable waters. However, the meaning of “significant nexus” is unclear. Following the precedent of Nancy Pelosi  and her philosophy to pass the bill to find out what is in it, the EPA says it will provide a more detailed definition for the criteria of a “significant nexus” when the rule is published.

A key talking point for enacting the Waters of the U.S. rule is that if you like your land you can keep it; but you may have to pay the federal government a permit fee to use it. 

When the S.D. Warren Company of Maine challenged the Maine Board of Environmental Protection in a 2005 United States Supreme Court case a hint to the extent the EPA may go in claiming control of all land is found in the court’s question to a company lawyer:

If you filled a barrel with river water then dumped the same water  back into the same river some time later, would you consider that a discharge into the river?  The surprise answer was “Yes,” and that such discharge should be considered as subject to regulation by the EPA.

Another question presented in a Florida case created some contradiction:

Does the mere flow of water through an existing dam constitute a “discharge under Section 401, 33 U.S.C. § 1341, of the Clean Water Act, despite this Court’s holding last year in Miccosukee (Indian reservation) that a discharge requires the addition of water from a distinct body of water?”

Clearly the Warren Company discussion, coming later than the Florida case, indicates this court will probably uphold that no additional water needs to be added for EPA to justify control.

With this kind of bureaucratic take-over of private property without congressional action there is no question that this federal government is moving directly and rapidly toward a totalitarian state where private property is only allowed at the will of the government.

This latest planned power grab by the EPA is only the latest in a decades long slippery slope on which private property rights have been sliding. That loss of property rights is one of the reasons officials from nine Western states met in Salt Lake City, Utah to discuss states taking over much of the federal land within their borders.

More than 50 officials from the states of Montana, Idaho, Oregon, Washington, Utah, New Mexico, Arizona, Wyoming and Nevada gathered in Salt Lake City for what was called the Legislative Summit on the Transfer for Public Lands. 

At a press conference following the closed summit, Utah representative Ken Ivory (R-West Jordan) said, “It’s simply time. The urgency is now.”

Montana State senator Jennifer Fiedler explained, “there is a distinct difference in the way federal agencies are managing the federal lands today.” She said they used to do a good job, but today they are too busy arguing over conflicting policies, justifying politicized science, and are simply unable to pay to maintain service levels because of the extreme financial crisis at the national level.

Fiedler called for action, “We have to start managing these lands. It’s the right thing to do for our people, for our environment, for our economy and for our freedoms.”

Fiedler’s remarks were echoed by Idaho Speaker of the House, Scott Bedke, (R-Twin Falls) who pointed out that, in Idaho, watersheds, forests and rangeland have suffered less damage from both wildfires and floods than the lands managed by the federal government.

“It is time states in the West came of age,” said Bedke. “We are every bit as capable of managing the lands within our boundaries as are the states to our east, those states east of Colorado.”

While the western states begin to study the costs and benefits of taking over control of some federal BLM controlled land within their borders, the EPA is poised to take control over virtually all land, public and private, within the entire U.S. using its ‘Waters of the U.S.’ rule to redefine any ditch on any property they want to control as a significant nexus to some tributary somehow relative to an economically critical body of water and so on and so forth.

San Antonio Express

Fox13 News

Congressional Record

U.S. Supreme Court Bound Vol 550


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