Federal Land and Water Power Grab

Claiming control over ‘every pond, stream and ditch’ in country

By Bob Unruh
JULY 16, 2015

June 29, 2015. The rule will become effective on August 28, 2015.

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.

Complete article HERE.

Clean Water Act  governs discharges to “navigable waters.” Although the law contains language defining navigable waters as “waters of the United States,” the U.S. Supreme Court rejected the position of the Army Corps of Engineers that its authority over water was essentially limitless under the Clean Water Act.

In Rapanos v. United States, the Supreme Court clarified that the term “waters of the United States” “includes only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams[,] … oceans, rivers, [and] lakes.

Justice Kennedy’s concurrence takes a different approach, holding that a wetland or non-navigable waterbody falls within the Clean Water Act’s ambit if it bears a “significant nexus” to a traditional navigable waterway. Such a nexus exists where the wetland or waterbody, either by itself or in combination with other similar sites, significantly affects the physical, biological, and chemical integrity of the downstream navigable waterway.



So our federal government is now making sure through the gangster efforts of the new improved EPA, Corp of Engineers, and BLM that no citizen has rights to property even if it has been in the family for generations?  The water we drink, the land we abide on, the very air we breathe is under assault not by climate change or by pollution  but by a corrupt power-hungry group of Communistic a!*!* determined to fundamentally reform and transform our country while lily-livered citizens whine and beg for more handouts. Choke on it liberals and Democrats, color us third world as the country becomes Fascist.  Is there no one capable of stopping this roller coaster?


About Uriel

Retired educator and constitutionalist
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6 Responses to Federal Land and Water Power Grab

  1. Hardnox says:

    The push for these regs has been the tree-humper groups who never stop and it will continue until such time the states wrest back their sovereignty and tell the EPA to eff off.

    Further, the lack of Congressional oversight of agencies cranking out regulations (laws) that were not enacted by Congress is completely opposite of how our government is supposed to function.

    • Uriel says:

      There is a certain degree of irony and realistic results here. In the 70’s unchecked and often contested abuse of land by industry and individuals was a big issue. However like many other issues, once the rabid sink their teeth into an issue no rock will be left unturned and loss of rights will follow.

  2. vonmesser says:

    Take control of NAVIGATIBLE waters away from the Army (Corps of Engineers) and give them to the Navy (or even the Coast Guard) where they belong.

    • Uriel says:

      Never have understood the Corp of Engineers. How they managed to take over all things far beyond initial set up would make an interesting exposé. I would think an excellent cost efficient move for economic conditions would be eliminate all but the core purpose. I can see multibillion dollar savings by doing that.

      • Kathy says:

        That would be an excellent idea, Uriel, if it were about saving money and what’s right for people and the country. Unfortunately it’s about control of absolutely everything.

        We talk a lot about how the next admin can undo much of this mess, but I think we all know that once done, these things rarely if ever get undone. Trump maybe, but the others who are politicians, doubtful.

        Good piece and it just shows how powerful the EPA has gotten. Out of control.