Proposed Water Rule Could Put ‘Property Rights of Every American
Entirely at the Mercy’ of EPA
ALRA: Call your Senators Today at (202) 224-3121 to urge action now.
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By Ron Arnold
It seems incredible, but a single missing word could turn a water law
into a government land grab so horrendous even a U.S. Supreme Court
justice warned it would “put the property rights of every American
entirely at the mercy of Environmental Protection Agency employees.”
The missing word is “navigable.” The Obama administration is
proposing a rule titled “Definition of ‘Waters of the United
States’ Under the Clean Water Act,” which would strike
“navigable” from American water law and redefine any piece of land
that is wet at least part of the year, no matter how remote or
isolated it may be from truly navigable waters, as “waters of the
United States,” or WOTUS.
The proposed rule would provide EPA and the Corps of Engineers (as
well as litigious environmental groups) with the power to dictate the
land-use decisions of homeowners, small businesses and local
communities throughout the United States. There would be virtually no
limit to the federal government’s authority over private property.
Puddles, ponds, ditches, ephemerals — the EPA wants to regulate it
The proposed rule has ignited a firestorm of protest. Agricultural and
business interests, free-market think tanks, state agencies, attorneys
general and governors have joined the “Ditch the Rule” movement
and demanded it be withdrawn.
The Obama administration is conducting an aggressive shield campaign
to downplay the proposed rule’s huge negative impacts and paint
critics as opponents of clean water, shills for development interests
or anything other than concerned citizens.
Obama’s own political shills for anti-development interests, such as
Organizing for Action, Natural Resources Defense Council and Clean
Water Action, are marching in lockstep with the agencies to discredit
any opposition to the rule.
But recently, a group of 25 US. senators called out the Obama
administration for misleading Americans on the proposed rule. In a
scathing letter to the EPA and the Corps, the senators detailed the
administration’s deceptions and bias:
• The Obama administration claims the proposed “Waters of the
United States” rule responds to prior requests for a Clean Water Act
rulemaking. It does not.
• The Obama administration insinuates that opposition to the
proposed rule is equivalent to opposition to clean water. It is not.
• EPA has attempted to delegitimize questions and concerns
surrounding the proposed rule. Concerns are legitimate.
• EPA and the Corps have blatantly misrepresented the impacts of
increased Clean Water Act jurisdiction. The impacts are real.
• EPA’s social media advocacy in favor of the proposed “Waters
of the United States” rule prejudices the rulemaking process. It
Affected parties are more credible in this battle than the
administration. The American Farm Bureau started the “Ditch the
Rule” movement with pictures that showed what the EPA and Army Corps
of Engineers would regulate if the Waters of the United States rule
takes effect: “wetlands” that are nothing more than low spots on a
farm field, the decorative pond of a suburban home or even a vacant
lot that the agency designates as possessing the requisite wetness.
If the farmer fills in low spots or the homeowner builds a child’s
playhouse by the pond, or a business constructs a new office on the
vacant lot or anyone touches any bureaucrat-designated “wetland”
in any way, the EPA or Corps may order the owners to cease activity,
restore original conditions and abandon any use of the property.
If the owners do not comply, they could be fined up to $75,000 per
day—$37,500 for violating the rule and another $37,500 for violating
the agency’s order. The property owner is blocked from going to
court until sued by the agency, which could dawdle until fines have
skyrocketed into the millions.
That’s no exaggeration.
It’s from Supreme Court Justice Samuel Alito’s concurring decision
in the 2012 case of Michael and Chantell Sackett, an Idaho couple who
placed fill material on their property to build their dream home and
suffered exactly the outrageous treatment the justice described.
After failing in lower courts, the Sacketts finally won a Supreme
Court ruling that they had the right to sue the EPA for exceeding the
reach of the Clean Water Act. At least three other Supreme Court
rulings have rejected parts of the administration’s interpretation
of the Clean Water Act.
The Supreme Court trumps the president of the United States, and in
this instance shares the concerns of the “Senate 25.” But none of
the high court’s decisions answer the exact question: What is the
reach of the Clean Water Act?
Therein lies the crux of the WOTUS menace: The reach of the Clean
Water Act is notoriously unclear, and EPA and the Corps have kept it
The Farm Bureau is particularly concerned by EPA’s refusal to answer
direct questions such as, “Name three things that get wet, like
roadside drainages, irrigation ditches, and livestock watering ponds,
that would not be regulated by WOTUS.” Dead silence. And a permit to
do anything in a designated “wetland” can cost upwards of
The National Federation of Independent Businesses asserted in its
official comments to the EPA, “The CWA is unconstitutionally vague
because the regulated community cannot readily determine whether a
given property is, or is not, a jurisdictional wetland.” The
uncertainty helps the Obama shield campaign.
Two weeks before the Senate 25 called out the EPA, the attorneys
general of 11 states and the governors of six states sent a similar
letter to the EPA and the Corps.
“This rule should be withdrawn and replaced with a common-sense
alternative that respects states’ primary responsibility over lands
and waters within their borders while also giving land owners clear
guidance,” the letter stated.
Scott Pruitt, Oklahoma’s attorney general and a leader in drafting
the states’ letter, told The Daily Signal, “The proposed
‘WOTUS’ rule unlawfully and unconstitutionally asserts federal
control over local water and land by needlessly replacing state and
local land-use management with top-down, federal control.”
“Unlawful” and “unconstitutional” are not words attorneys
general use lightly. When asked to size up the overall issue, Pruitt
said, “The WOTUS rule appears to be another attempt by federal
agencies to implement an agenda through regulations to affect land-use
decisions that should be left to the states and private property
In September, the House passed bipartisan legislation, H.R. 5078, that
prohibits the EPA and Corps from finalizing the WOTUS rule. A
companion bill is stalled in the Senate.
With the coal industry overpowered, Obama’s rogue administration
looks to have declared war on the rest of us.
Ron Arnold <firstname.lastname@example.org>
via Chuck Cushman
American Land Rights Association