SCOTUS reins in WOTUS abuse … somewhat

The U.S. Supreme Court (SCOTUS) Tuesday acted to finally curb, but not eliminate, the unfettered power of the Environmental Protection Agency and the Army Corps of Engineers to control every stream, ditch, wetland or muddy hoof print that might eventually spill a few drops of water into any rivulet that might occasionally be navigable with an inner tube.

Under the agencies’ vague definition of what exactly are waters of the United States (WOTUS) under the Clean Water Act of 1972, the existence of any water on one’s own property promulgates the necessity to obtain a permit before doing anything that might “pollute” that water with anything, including dirt.

In a unanimous decision in Army Corps of Engineers v. Hawkes Co., the court said property owns have a right to sue in court over permitting determinations. The federal agencies had circuitously contended that property owners could only go to court once decisions were final, but essentially argued that all permitting decisions are reviewable and potentially reversible and therefore never final.

Muddy hoof print (Getty Images)

In December 2010, the Hawkes Co., which mines peat for use on golf courses among other uses, applied for a permit to mine peat on a 530-acre tract of property it owns in Minnesota. The Corps of Engineers told the company they would have to do numerous tests that would cost more than $100,000.

In February 2012, the Corps determined the land contained “water of the United States” because its wetlands had a “significant nexus” to the Red River of the North, located some 120 miles away. The owners appealed and got the same result, essentially a denial of permission to mine their own property.

In the opinion of the court, Chief Justice John Roberts points out the definition of WOTUS used by the EPA and the Corps “include land areas occasionally or regularly saturated with water — such as ‘mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, [and] playa lakes’ — the ‘use, degradation or destruction of which could affect interstate or foreign commerce.’ The Corps has applied that definition to assert jurisdiction over ‘270-to-300 million acres of swampy lands in the United States — including half of Alaska and an area the size of California in the lower 48 States.’”

Roberts also noted that a specialized individual permit, such as the one sought by Hawkes, on average costs $271,596 and 788 days to complete, not counting any mitigation costs that might be required. He said the permitting process can be “arduous, expensive, and long.” No kidding. He left out futile.

The Corps told Hawkes after its denial of a permit that it could appeal administratively, but not judicially, or simply do the work without a permit and risk a fine of $37,000 a day and criminal prosecution.

The court said Hawkes has a right to sue in court. So, it curtailed the process but did not put a stop to the draconian obstruction of the right of personal property.

In a concurring opinion, Justice Anthony Kennedy, joined by Justices Clarence Thomas and Samuel Alito, said that the EPA and Corps “ominous reach” on interpreting the Clean Water Act “continues to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation.”

Nevada Attorney General Adam Paul Laxalt, who along with 22 other attorneys general filed an amicus brief in this case, applauded judgment.

“This unanimous U.S. Supreme Court decision vindicates our position that the Obama Administration has continually attempted to avoid the rule of law and judicial review of its unlawful actions,” said Laxalt. “The Obama Administration seems determined to move as far and as fast as possible to unilaterally change our constitutional system and our congressional laws. … Fortunately in this case, our checks and balances have protected Nevadans from truly unprecedented federal overreach.”

But the reality is that this decision, while welcome, merely puts a Band-Aid on a hemorrhage. Congress must rewrite the Clean Water Act and properly define WOTUS for the rapacious federal agencies lest they grind commerce in this country to a halt.

The House passed legislation nearly a year ago that would have blocked the EPA water rule, but in January the Senate failed to override Obama’s veto.

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AG opens another front in fight against EPA water grab

Earlier this month, the Environmental Protection Agency issued its final rule to “clarify” what water is covered by the Clean Water Act of 1972, which originally was intended to limit pollution of navigable waterways. The clarification puts nearly every stream, ditch, wetland or muddy hoof print under EPA control.

AG Adam Laxalt

Members of Congress were already moving forward with legislation to block the usurpation of state water rights. Reps. Mark Amdoei, Cresent Hardy and Joe Heck voted with a majority of the House (261-155) on a bill to block this EPA water rule (H.R. 1732). Rep. Dina Titus, of course, voted against it.

On Monday Nevada Atttorney General Adam Laxalt joined the fray. He joined a dozen others in suing in federal court over the so-called “Waters of the United States” rule.

“I will fight for Nevada each time President Obama attempts to unilaterally ‘transform’ this country through expansive and unconstitutional new interpretations of decades-old laws. My office has pledged a commitment to protecting our state from unreasonable federal overreach and will continue to do so at every opportunity,” said a Laxalt press release.

Coming on the heels of the Supreme Court ruling reining in the EPA’s overreach on emissions from coal-fire power plants, it seems the lawsuit has promise.

“This is the latest power grab by this presidential administration to expand federal oversight into areas that are better managed by state and local governments,” said Laxalt. “Congress directed that the states retain their sovereign authority over state land and water resources. The ‘Waters of the United States’ rule would grant the EPA authority over areas properly regulated by state and local governments. This expansive new rule is particularly problematic for states like Nevada, whose specific needs cannot be understood by federal agencies such as the EPA, with its one-size-fits-all approach to regulation.”

The new EPA rule would allow the federal government to require a permit and demand a fee for any work that alters the flow of water near any rivulet — anything from dredging an irrigation ditch to terracing a field — on public or private land.

Muddy hoof print (Getty Images)

At the time of the rules publication President Obama declared, “Too many of our waters have been left vulnerable to pollution,” which to the EPA includes dirt. “This rule will provide the clarity and certainty businesses and industry need …” he said, claiming the rule has been written to avoid harming farming, ranching and forestry.

But the Western Congressional Caucus said the EPA spurned public comment and input from the states in the rulemaking process, saying of the new rule, “This is nothing short of a federal seizure of state waters, to the point where very few, if any, water bodies will be left for the states to manage. Water rights, economic growth, and local conservation efforts will suffer. Instead of working with the local officials and state agencies who know their needs the best, citizens will have to depend on a disconnected federal bureaucracy for management of our most precious natural resource: our water.”

 

Editorial: Nevada delegation must help pass legislation to curb EPA water grab

This past week the Environmental Protection Agency issued its final rule to “clarify” what waters of the U.S. are covered by the Clean Water Act of 1972, which originally was intended to limit pollution of navigable waterways, such as the Great Lakes and the Colorado River.

Under this rule the EPA is taking control over every stream, ditch, wetland or muddy hoof print that might eventually, somehow spill a few drops into any waterway that might occasionally be navigable with an inner tube.

Of course, the rule overreaches far beyond what Congress ever intended.

Muddy hoof print (Getty Images)

This would allow the federal government to require a permit and demand a fee for any work that alters the flow of water near any rivulet — anything from dredging an irrigation ditch to terracing a field — on public or private land.

President Obama declared, “Too many of our waters have been left vulnerable to pollution,” which to the EPA includes dirt. “This rule will provide the clarity and certainty businesses and industry need …” he said, claiming the rule has been written to avoid harming farming, ranching and forestry.

But the Western Congressional Caucus — of which Nevada Republican Reps. Mark Amodei, Cresent Hardy and Joe Heck are members — said the EPA spurned public comment and input from the states in the rulemaking process, saying of the new rule, “This is nothing short of a federal seizure of state waters, to the point where very few, if any, water bodies will be left for the states to manage. Water rights, economic growth, and local conservation efforts will suffer. Instead of working with the local officials and state agencies who know their needs the best, citizens will have to depend on a disconnected federal bureaucracy for management of our most precious natural resource: our water.”

Just a couple of weeks ago Amdoei, Hardy and Heck voted with a majority of the House (261-155) on a bill to block this EPA water rule (H.R. 1732). Rep. Dina Titus, of course, voted against it.

Hardy, who was touring rural communities in his district when the rule was announced, issued a statement saying, “The more disturbing part to me is how they are going against the wishes of Congress, state and local leaders, and millions of American citizens who will be affected most by this rule. Even after the House of Representatives overwhelmingly passed a bipartisan piece of legislation (H.R. 1732) to ask for the EPA to reconsider the then-proposed rule and work with others to complete a fair alternative, this action reveals the underlying motive, which is to greatly expand federal jurisdiction over as much private property as possible. I encourage local and state leaders across Nevada to continue to raise their voice in opposition to this rule.”

Amodei tersely commented, “”In case there was any doubt, Barack Obama has confirmed that his belief in one branch of the federal government, him, is all he is capable of fathoming. Nineteen months left in the most incompetent and destructive presidency in modern history. Run, clock, run!”

Nevada’s Republican Sen. Dean Heller posted his comment on Twitter, “The Environmental Protection Agency’s ‘Waters of the US’ water grab ignores the needs of western states like Nevada. We should send the Environmental Protection Agency back to the drawing board.”

Republican Sen. John Barrasso of Wyoming is pressing in the Senate an effort similar to H.R 1732, one that would specify the types of streams and wetlands that may and may not be covered under federal law.

“Under this outrageously broad rule, Washington will have control over how family farmers, ranchers and small businesses not only use their water, but also their privately owned land,” Barrasso said in a statement, adding that “our bill that says yes to clean water — and no to extreme bureaucracy.”

At a meeting of the Nevada Conservation Commission a year ago, state engineer Jason King, whose office determines who in Nevada has rights to various water sources, was quoted as saying, “I look at this as an attempt to get into the regulation of the amount of water — an attempt to get their nose under the tent.”

We call on our congressional delegation to help press for legislation that will pull the teeth from this draconian rule that could devastate Nevada agriculture and industry.

A version of this editorial appears this past week in the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Federal agencies plans to take control of every drop of rain that falls

Might have to get an EPA permit to move a rock.

Might have to get an EPA permit to move a rock.

Is there nothing the federal government will not micromanage into a bureaucratic knot of red tape?

Now the Environmental Protection Agency has rewritten the rules for the Clean Water Act in such a way that gives it authority over just about any stream, dry creek bed or backyard wading pool in the country, even though the law as originally written was meant to protect navigable interstate waterways from pollution.

The proposed rule was published in the Federal Register on April 21. The public comment period will be open for 91 days and will close on Monday, July 21.

According to the Nevada Appeal, at a recent meeting of the Nevada Conservation Commission, state engineer Jason King, whose office determines who in Nevada has rights to various water sources, said, “I look at this as an attempt to get into the regulation of the amount of water — an attempt to get their nose under the tent.”

The commission was told the new rules would require federal permits for the most minor changes to the smallest of tributaries, dry creek beds and just about anywhere rain might fall. It would be devastating to farmers, ranchers and others who use water as a part of their business.

An article in the Nevada Cattlemen’s Association newsletter quoted National Cattlemen’s Beef Association President Bob McCan of Victoria, Texas, as saying:

“This is a step too far, even by an agency and an administration notorious for over-regulation. This proposal by EPA and the Corps would require cattlemen like me to obtain costly and burdensome permits to take care of everyday chores like moving cattle across a wet pasture or cleaning out a dugout. These permits will stifle economic growth and inhibit future prosperity without a corresponding environmental benefit. This proposed regulation and the burdensome federal permitting scheme will only hinder producers’ ability to undertake necessary tasks and, in turn, result in an exodus of ranchers from the field.”

The definition of the nation’s waters is changed in the rules to include “rivers, streams, ditches, wetlands, ponds, lakes, playas, and other types of natural or man-made aquatic systems.”

Even without the new rules the EPA is threatening to fine a Wyoming couple $75,000 for building a cattle pond on their property after getting full approval from that state’s water engineer, and there was no evidence of pollution.

The conservation commission voted to protest the rules.