[Ed. – This cannot stand. No people can live this way. Emphasis added.]
Behold the Environmental Protection Agency’s rewrite Wednesday of the Clean Water Act that extends federal jurisdiction over tens of millions of acres of private land.
The Clean Water Act limits the federal government to regulating the “navigable waters of the United States” like the Colorado River or Lake Michigan. In 1986 the EPA expanded that definition to seize jurisdiction over tributaries and adjacent wetlands. Now it is extending federal control over just about any creek, pond, prairie pothole or muddy farm field that EPA says has a “significant nexus” to a navigable waterway. …
[T]he new rule says the feds can…regulate waters within the 100-year floodplain and 4,000 feet of their claimed bailiwick or land features like prairie potholes and vernal pools that “in combination” have a significant effect. A pothole on farmer Dan’s land may not affect downstream waters, but the EPA could still regulate Dan’s pothole if regulators determine that prairie potholes collectively do.
The sad irony is that the EPA is exploiting an opening created by a Supreme Court case that overturned a federal regulatory abuse. In its 4-1-4 split ruling in Rapanos v. U.S. in 2006, the Army Corps of Engineers had sought to throw a Michigan landowner in prison because he didn’t obtain permits to move dirt on a sometimes-saturated piece of land, which was connected to a drain, which ran into a shallow creek, which flowed into the Kawkawlin River, which emptied into Saginaw Bay and Lake Huron.
In a sharp rebuke, Justice Antonin Scalia, joined by Chief Justice John Roberts andJustices Clarence Thomas and Samuel Alito, explained that “waters of the United States” could not possibly apply to the man’s land that was 11 to 20 miles away from the nearest “navigable” waterway.
The waggish Justice Scalia noted that the Corps’s expansive reading of “waters of the United States” could extend to “the entire land area of the United States,” which “lies in some drainage basin, and an endless network of visible channels furrows the entire surface, containing water ephemerally wherever the rain falls.” He shouldn’t have suggested the idea. …
Loath to set a limiting principle, Justice Anthony Kennedy argued that federal agencies could regulate wetlands…which “either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’”
Justice Kennedy’s muddled opinion deprived lower courts and property owners of clarity to navigate the Clean Water Act, but it gave the EPA an opening as wide as the Mississippi to regulate.