Jeffrey M. Reid: Stand up against EPA overreach

June 5, 2014 

Recent government abuses brought together civil libertarians from the right and left to oppose government spying on citizens. Now, those citizens who might place a shovel in their soil should be actively enraged and engaged to block another government abuse in the planning stages.

The Obama administration is rewriting the Clean Water Act to impose EPA jurisdiction over nearly every foot of soil in our nation, through administrative rulemaking. The president's intended CWA rules redefine government jurisdiction over "waters of the United States" and will empower the EPA police force to further fine, jail and abuse our citizenry.

Our president famously pledged to use the power of his pen to act unilaterally if Congress failed to act. But in this matter, he instead intends to undermine Supreme Court decisions that expressly limited the powers he now attempts to expand by rulemaking.

Congress is not sitting idly by. A bipartisan majority of the House of Representatives, including every member of the San Joaquin Valley's congressional delegation, signed a letter demanding the administration cease its intended abuse. It opposes the president's action as legally and scientifically unsound, procedurally flawed, inconsistent with judicial precedents, and peppered with undefined and vague concepts.

The congressional claims are well-supported. The Supreme Court overturned EPA overreach that attempted to regulate isolated puddles and mudflats. In Rapanos v. United States, Justice Kennedy set limits on EPA's Clean Water Act jurisdiction over private lands. His ruling allowed jurisdiction only if lands were wetlands adjacent to traditional nonnavigable tributaries (a stream with a bed, bank and ordinary high water mark) or wetlands found to have "significant nexus" to such tributaries, or to navigable or interstate waters. Under those standards, lands that occasionally become wet and are isolated from traditional tributaries are not under Clean Water Act jurisdiction.

The EPA now intends to claim authority over lands not adjacent to a traditional tributary, where the nexus to the tributary or waterway is merely "not insignificant" or "not speculative." They also redefine the concept of tributary, to include wetlands with no bed and bank, and no ordinary high water mark. These standards would regulate the exact lands that the Rapanos ruling had exempted.

These legal jargons have real world impacts. Recently, cattle rancher Jack Field advised Congress about the impacts on his operations. Field testified that there is a stream in his pasture that will cause him to need an EPA Section 404 permit to graze cows. Also, fencing he installs on the ranch may have to meet new EPA mandates, which detail the spacing of his posts and the number of wire strands on the fence.

EPA contends there is scientific analysis to support its expansive jurisdiction as necessary to preserve waterways and protect water quality and species habitat. The problem is, the EPA hasn't finalized the scientific analysis it relies on. The draft EPA scientific analysis, titled "Connectivity of Streams and Wetlands to Downstream Waters" was not submitted to its Science Advisory Board until the day the final rule was submitted to Office of Management and Budget, and is still pending final review and official release.

However, the EPA is regulating now and hopes its supposed scientific support will catch up. Meanwhile, it will wreak economic chaos on ranchers, farmers and property owners who might plant, plow, irrigate, graze livestock, or dig in their dirt.

The vast amount of California lands that are potentially "neighbors" to intermittent and ephemeral streams are mapped on pages 4-47 of EPA's draft scientific study. These are not lands that might come under CWA regulation after a future hydrologic connectivity study. These are lands that will be regulated because they are in the same "riparian area" or "floodplain" (both terms being ill-defined) of an ephemeral stream. Lands not "neighboring" ephemeral streams might still be confirmed as "Other Waters," and subject to EPA jurisdiction, based on the rule's indeterminate regulatory standards.

It is true that all water runs downhill. But that fact should not allow President Obama unilaterally to rewrite the Clean Water Act and establish EPA jurisdiction over lands that are not waterways, wetlands or traditionally understood tributaries. Learn more at ditchtherule.fb.org. If you think your land may be affected, ensure you have legal standing to challenge these rules by joining the nearly 70,000 citizens who have made public comment. Add your voice in protest at www.regulations.gov/" target="_blank"__gt__http://#!submitComment;D=EPA-HQ-OW-2011-0880-0001.

 

Jeffrey M. Reid is a land use and real estate attorney with McCormick Barstow, LLP and a resident of Fresno County.

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