Monday, November 2, 2015

Waters of the US rule is not dead yet

Earlier this year, the Environmental Protection Agency officially granted subjugation of water and property rights by the federal government through amendment of the Clean Water Act of 1972.

In its old form the Act gave jurisdiction over all navigable waters to the feds. This was not a perfect law, but it did have some merit because regulation of navigable waters are necessary for the maintenance of interstate trade, which is one of the defined powers of the federal government.

The modified version expanded their regulatory powers beyond navigable waters and threw into the mix any waterway that contributes to the watershed of the navigable water. Therefore, federal jurisdiction is extended to all bodies of water – permanent or intermittent – everywhere in the United States, be they in your backyard or on your farm. The federal definition was extended to include, among other things, streams, wetlands, sloughs, wet meadows, ponds and ditches.

This allows the federal government to regulate how you manage your own private property. They are now allowed to control what you do and how you do it and will be empowered to force you to mitigate anything they might perceive as detrimental, from gardening and farming to landscaping and lawn treatments.

This will have a negative impact on millions of property owners. Those who will have to answer for land and water they own will be: people who manage their ponds for fishing and leisure; miners who need water to pump their mines and wells; ranchers who need watering holes for their cattle; farmers who need to irrigate their fields and any homeowner with a stream in his lawn or woodlot; and anyone living within three-quarters of a mile of any body of water

There is somewhat of a reprieve, though. The US Sixth Court of Appeals issued a temporary stay until the legal merits of a lawsuit brought by 13 states can be addressed. The judges thought that the states were likely to succeed because the EPA had adopted an exceptionally expansive view of its own powers and included waters beyond the scope of reason. The Court had also noted that an undue burden was placed on the citizenry. 

While that sounds well and good, legal theorists, especially those in the federal government, are expressing concern that the Court may not have the power to hear challenges to the Waters of the US rule and other courts would have to address certain parts of the suit and the rule.

While this is occurring, the EPA said it will proceed with enforcement of the rule in states that were not party to the suit, meaning property owners here in New York are fair game.

The impact of that should not be dismissed. You should take the time to review a visual produced by the American Farm Bureau which shows the impact of the new rules in a handful of communities across the country. Among those towns chosen was Pendleton. The graphic for that local burg shows that the entire community would be under federal control. Furthermore, the Farm Bureau’s study shows that if you follow the EPA’s significant nexus standard (that is, protection of anything within 4,000 of a body of water), 98% of the Empire State will fall under Waters of the US. You can download the report at

It’s actually pretty scary to consider what the Clean Water Rule has become and would it could be. Let’s hope the Sixth Court of Appeals does have jurisdiction and can overturn the rule. If not, we have to hope for other lawsuits in other venues or the election of a President who has the logic and guts to eliminate this insanity imposed by the EPA.   

From the 02 November 2015 Lockport Union Sun & Journal 

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