And that gives them jurisdiction over it
EPA decides that pothole full of water on your property just might be a wetland
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No act of Congress is involved here, but since when is that significant when we’re talking about the Obama Administrative State? The Clean Water Act of 1986 gives the EPA authority to claim jurisdiction over wetlands, and the language in the act leaves a bit of room for interpretation concerning just what a wetland is.
You know what the Obama EPA will do with that, right? Wetlands are supposed to be protected because of their importance to ecosystems. That’s why the act talks in terms of water with a significant nexus to a navigable waterway. In other words, it’s not supposed to be an excuse for the EPA to grab control over your land just because there’s a little water leftover after a rain storm, or some standing water in a pothole.
But this is the age of Obama. Who cares what the law says? Not your friendly EPA:
The EPA acknowledges that the “science available today does not establish that waters beyond those defined as ‘adjacent’” to these “significant” waters should be regulated. But forget science. The agency says its “experience and expertise” show there are “many” other waters that could have a significant downstream effect. Thus the EPA establishes an additional standard for significance that covers just about anything that’s wet.
So the new rule says the feds can also 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 and Justices 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.
Indeed. You don’t want to give these people ideas. Obama will grab any opportunity he thinks he can get to expand the authority of the federal government, and the ability to control private land is one of the most powerful ways of doing that. You just need a pretext of some sort. This has always been the reason the left is so devoted to environmentalism. If the government can stop you from using your land for any reason that might relate to the environment, then no piece of land is really safe from the prospect of a federal takeover.
And don’t think this has to take the form of a legal taking. All the government has to do to essentially steal your land from you is to deny permits or otherwise use legal maneuvering to do what you want to do on it. If you buy land but you can’t use it as you intend, then the investment you’ve made in that land is essentially worthless. And it’s easier for the government to do this than to take it via eminent domain, because this way they don’t have to buy it and they keep it on the tax rolls.
What’s more, the EPA doesn’t even care that the Supreme Court clearly limited its ability to pull this kind of crap. They understand the timeline involved in a legal claim. They just do it anyway and dare anyone who has a problem with it to take them to court. That’s how the Obama Administration approaches every illegal power grab.
So if you own land that occasionally features standing water, don’t let the EPA find out about it. You won’t be using that land for long. It’s a shame American citizens have to play keepaway with the federal government, but maybe people should have thought about that when they elected a president who clearly had inclinations to expand the power of the state at their expense. It’s not as if the signs weren’t there. Starstruck voters just didn’t want to see them.