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 roughshod 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.
“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.”