Court Restrains The Puddle Police—For Now

Court Restrains The Puddle Police—For Now

If the Environmental Protection Agency can claim the federal government can regulate manmade ditches and standing water, what private lands will be left?
D.C. McAllister
By

The Environmental Protection Agency is encroaching on private land through the Clean Water Act, but several states are fighting back, and the U.S. Court of Appeals for the Sixth Circuit has issued a ruling that helps protect landowners from federal intrusion.

In early October, the Sixth Circuit put a nationwide hold on the Obama administration’s “Waters of the United States” (WOTUS) rule that threatens local and private property rights by placing land under federal jurisdiction despite no environmental benefit. The action could also cause significant economic damage. Thirty states have opposed the rule, saying it’s an illegal act of federal overreach.

The Environmental Protection Agency’s (EPA’s) new rule redefines WOTUS in the Clean Water Act (CWA), broadening the range of “navigable waters” that falls under the CWA’s jurisdiction. The rule potentially extends the EPA’s authority to regulate private land anywhere in the country, including dry creek beds, ditches, and certain types of standing water.

The manmade ditch in your backyard doesn’t have much to do with shipping and navigation, but the EPA wants to redefine it. As a result, the federal government could possibly tell just about anyone what he can and can’t do with his own land.

Hold Your Horses

The EPA has said it just wants to “clarify” language in the CWA, but the Sixth Circuit didn’t buy it and put the WOTUS rule on hold while a challenge from the states works its way through the federal court system.

The manmade ditch in your backyard doesn’t have much to do with shipping and navigation, but the EPA wants to redefine it.

Those who oppose the rule say it would not only threaten private property rights but also harm farmers and economic development by greatly expanding jurisdiction over waters never before federally regulated. The ruling in the Sixth Circuit makes it more likely that the petitioning states will succeed in court, and suspends the Obama administration’s ability to enforce the WOTUS rule in all 50 states.

“We are pleased the court recognizes that this federal rule would harm North Carolina’s farmers and stifle economic development, and has decided to prevent the federal government from enforcing it until a final ruling is made,” said North Carolina Gov. Pat McCrory. “The future of North Carolina’s waters must continue to stay in North Carolina’s hands and not in Washington, DC.”

McCrory’s chief environmental regulator, Secretary Donald van der Vaart, said the ruling was “about as good as it can get” and that no harm would come to the environment by putting the rule on hold. The court agreed, saying there is “not any indication that the integrity of the nation’s waters will suffer imminent injury if the new scheme is not immediately implemented and enforced.”

We’ve ‘Cleared the First Hurdle’

In reaching their decision, the judges questioned whether the public was given reasonable notice about specifics of the rule and determined the EPA did not present “specific scientific support” for some of the rule’s provisions aimed at protecting the environment.

‘There is no reason for the federal government to usurp a state’s regulatory authority, especially given our strong record of environmental protection.’

Van der Vaart said North Carolina doesn’t need the federal government meddling, because many of the state’s water quality programs go beyond federal requirements and have contributed to steady water quality improvement throughout the state. “There is no reason for the federal government to usurp a state’s regulatory authority, especially given our strong record of environmental protection, or intrude on the rights of private property owners.”

North Dakota Rep. Kevin Cramer also praised the court’s ruling, saying it was another win in the battle to repeal the WOTUS rule.

“The Sixth Circuit’s decision to issue a nationwide injunction ensures landowners, farmers and ranchers as well as energy workers throughout the country are spared the devastating consequences of this rule,” Cramer said. “Given the impact WOTUS has on states and local governments and private property rights, this is the correct ruling. The injunction provides time for a complete judicial review of the legal merits of the rule and more time for Congress to finalize a legislative solution.”

EPA Shenanigans Don’t Stop There

As Cramer stated on his website, continued congressional oversight of the EPA on WOTUS exposed memos from the Army Corps of Engineers to the EPA showing the agency appeared to manipulate the Corps’ data to support the EPA’s implementation of the rule. Corps staff argued that the economic analysis and technical support document the EPA prepared for the WOTUS rule “are flawed in multiple respects.”

The New York Times exposed the EPA’s efforts to solicit positive comments for the proposed rule, possibly violating federal lobbying laws.

“In the Corps’ judgment, the documents contain numerous inappropriate assumptions with no connection to the data provided, misapplied data, analytical deficiencies and logical inconsistencies,” the memo said.

Questions have also been raised about comments the EPA generated to support the WOTUS rule before it was implemented. An in-depth investigative report published by The New York Times in May exposed the EPA’s efforts to solicit positive comments for the proposed rule, possibly violating federal lobbying laws.

“In a campaign that tests the limits of federal lobbying law, the agency orchestrated a drive to counter political opposition from Republicans and enlist public support in concert with liberal environmental groups and a grass-roots organization aligned with President Obama,” The New York Times reported. “The Obama administration is the first to give the E.P.A. a mandate to create broad public outreach campaigns, using the tactics of elections, in support of federal environmental regulations before they are final.”

In addition, the EPA and the Corps appeared to cut corners in drafting the WOTUS rule by failing to comply with the Regulatory Flexibility Act (RFA). The act required the EPA to study how the WOTUS rule would affect small businesses. If they determined the impacts to be significant, the EPA needed to take that data into account and study less burdensome alternatives and regulations. This didn’t happen according to the act, as reported by the Office of Advocacy of the U.S. Small Business Administration.

If the WOTUS rule is allowed to stand, private property rights for all citizens will be in jeopardy. If the EPA can claim the federal government can regulate manmade ditches and standing water, what private lands will be left? Will puddles be regulated? What about pools? Is there any real environmental benefit to having the federal government extend its reach into our backyards? The answer is clearly no.

“The system of private property is the most important guarantee of freedom,” Friedrich Hayek said. To keep and own our own property, to do with it as we will, is the source of our liberty. That truth has not changed, and it’s why the Obama administration’s encroachment onto private property in the name of “saving the environment” must be stopped.

Denise C. McAllister is a journalist based in Charlotte, North Carolina, and a senior contributor to The Federalist. Follow her on Twitter @McAllisterDen.

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