EPA’s War Against Property Rights

The original purpose of the Clean Water Act (1972) was to give  the federal government and the EPA the authority to regulate “navigable waterways.”  In other words, not a ditch out front of your home  and certainly not acres upon acres of private or state owned wetlands.  Yet, regulating these types of waters is precisely what the EPA is in the midst of doing.

The Army Corps of Engineers and the EPA are in the process of finalizing “Draft Guidance on Identifying Waters Protected by the Clean Water Act,” which is a fancy way of saying “we’re going to go out and change the definition of certain bodies of water so that we can pretend they fall within the Supreme Court’s definitions.”

What follows are two prime  examples of how the EPA is using their newly defined authority to mess with law-abiding, tax paying property owners. 

Peter  and Frankie Smith purchased 20 acres of land outside of Santa Fe in hopes of  building their dream home to retire to and live happily ever after. As is  typical in any desert landscape there are dry washes and stream beds that cross  their land.

The Smiths cleaned up a lot of trash in one dry stream bed  and smoothed off the bottom of the desert wash to make it look nice.   That’s when the big bad Army Corps of Engineers moved in and told them that the dry stream bed they had cleaned up was a ‘water of the United States’ and that their cleaning and smoothing of the dry stream bed  constituted illegal dredging and pollution flow problems that could affect  the Rio Grande River, some 25 miles away.   By declaring the dry stream bed  a ‘water of the U.S.,’  the Smiths were now subject to the rules and regulations of  the Clean Water Act, which they were now in violation of according to the Army  Corps of Engineers.

The Smiths were forced to seek legal help from the  Pacific Legal Foundation who then filed suit against  the Army Corps of Engineers  claiming  that the Corps actions had violated the constitutional  rights of the Smiths  as property owners and that they  had  overreached their  jurisdiction in trying to take over property rights from private citizens.

Jennifer Fry, an attorney at the Pacific Legal Foundation said that:  “Federal officials claim regulatory power over the Smiths and their property,  but the law says otherwise.  By labeling a dry creek bed as a  jurisdictional water body, regulators are thumbing their noses at common sense  and the Supreme Court.  The Smiths’ arroyo simply doesn’t fit the Supreme  Court’s tests for being a ‘water body’ subject to federal oversight and  control.  If the federal government can tell the Smiths what they can and  can’t do on their own land, by twisting the Clean Water Act and essentially  using a divining rod to conjure a ‘water body’ out of dry soil, then no property  owner, anywhere, is safe from federal intrusion. We’re aiming to stop federal regulators from becoming a national zoning board  with unlimited control over land use, from coast to coast.  This case could  also set a precedent by affirming that property owners have the right to their  day in court, and Clean Water Act regulators aren’t a law unto themselves.

The Pacific Legal Foundation won a similar suit earlier this year against the  Environmental Protection Agency, involving Mike and Chantell Sackett. This case,  which went before the United States Supreme Court, won the right of property  owners to challenge government wetlands compliance orders.

Mike and Chantell Sackett bought a two-third acre parcel of land (0.62) near Priest Lake, Idaho, on which they planned to build a house. Shortly after they began clearing the lot, the Sacketts received a Compliance Order from the EPA  asserting that the property was classified as a protected wetland and subject to the Clean Water Act,  and that the Sacketts had illegally placed fill material into jurisdictional wetlands on their property. The couple was  ordered to stop grading their property and return it to its original condition  or face steep fines.

While the land is located near Priest Lake, the dry, dirt lot was zoned for  residential use, sits between other houses in a suburban neighborhood, and has a  sewer hookup.  When the Sacketts tried to explain this to EPA officials, they were told that they would need to apply for a wetlands  development permit in order to receive a hearing.  But the permit application process proved to be time-consuming and expensive and their attorney Damien Schiff,   estimated the cost could be more than $200,000 – or more than the value of the  property itself so the Sacketts went to court.

The 9th Circuit Court of Appeals sided with the EPA  ruling that the family had a sufficient avenue of appeal and that  the permitting process was less onerous than described and that “allowing violators to challenge compliance orders quickly would also run  counter to EPA’s  efforts  to protect the environment.”

Supreme Court Justice Samuel Alito noted that the law allowing EPA to demand compliance was overly broad.  “The reach of the Clean Water Act is notoriously unclear. Any piece of land  that is wet at least part of the year is in danger of being classified by EPA  employees as wetlands covered by the act, and according to the federal  government, if property owners begin to construct a home on a lot that the  agency thinks possesses the requisite wetness, the property owners are at the  agency’s mercy.   The combination of the uncertain reach of the Clean Water Act and the draconian  penalties imposed for the sort of violations alleged in this case still leaves  most property owners with little practical alternative but to dance to the EPA’s  tune. Real relief requires Congress to do what it should have done in the first  place: provide a reasonably clear rule regarding the reach of the Clean Water  Act.”

“The water crisis is a health crises, it’s a farming crisis, it’s an economic crisis, it’s a climate crisis, and increasingly, it is a political crisis.  And therefore, we must have an equally comprehensive response.”    Your favorite Socialist Secretary of State, Hillary Clinton

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