The agency that contaminated the Animas River is about to start regulating water that may be in your backyard

animas4Unless a federal judge issues a preliminary injunction, the definition of the “Waters of the U.S.” will change on August 28—giving the Environmental Protection Agency (EPA) the authority to regulate the water in your backyard (even the water that might be in your backyard due to a heavy rain). Even, according to West Virginia Attorney General Patrick Morrisey: “any area where agencies believe water may flow once every 100 years.”

Thirty-one states, in four districts, have filed motions with the federal courts to block the EPA and the U.S. Army Corps of Engineers (ACOE) from beginning to enforce the new “Waters of the U.S.” rule (WOTUS), which represents a new interpretation of the Clean Water Act (CWA). The Federal Register calls the new rule “definitional” and states: “The rule will ensure protection for the nation’s public health and aquatic resources, and increase CWA program predictability and consistency by clarifying the scope of ‘waters of the United States’ protected under the Act.”

The WOTUS rule was published in the Federal Register on June 29 and will become effective on August 28.PatMor

The interpretation is important. The CWA used to apply to “navigable waters,” which now, as Texas Attorney General Ken Paxton recently said: “include almost any piece of land that gets wet and puddles.”

Morrisey (right) calls the rule “regulatory lunacy.” He’s hosted town-hall meetings where he’s heard from citizens concerned that “this rule would infringe on their property rights and force them to pay thousands of dollars to do basic work around their homes, farms, and workplaces.” Morrisey adds: “This rule expands a scheme whereby property owners have to ask the EPA for permission to do yardwork.” He claims: “Failure to comply with the new regulations could result in fines of up to $37,500 a day.”

While the word “navigable” hasn’t been removed from the CWA—as that would require an act of Congress—the EPA has expanded that definition to include any water that has a “significant nexus” with navigable waters. This is where water in your backyard could be impacted. Regarding the final rule, Paxton explains: It “is so broad and open to interpretation that everything from ditches and dry creek beds, to gullies, to isolated ponds formed after a big rain could be considered a ‘water of the United States.’”

The CWA’s single word, “navigable,” has, for decades, been contentious with those who want to expand government control and limit industrial activity such as oil-and-gas development, mining, ranching, and farming. Former Representative Jim Oberstar (D-MN) fought hard to have the word navigable removed from the CWA and to expand its control to any waters. Despite repeated bites at the apple, prior Congresses refused to pass his legislation.

The EPA, once again, uses rulemaking to do what its proponents couldn’t do through legislation—a hallmark of the Obama Administration.

NDoilA July 28, 2015, letter signed by officials from 31 states, sent to the EPA and the ACOE by North Dakota Assistant Attorney General Margaret Olson, requests a minimum 9-month extension of the WOTUS effective date.  The letter states: “The new regulation will also have a significant impact on agricultural, homebuilding, oil and gas and mining operations as they try to navigate between established state regulatory programs and the EPA’s and ACOE’s new burdensome and conflicting federal requirements. This uncertainty especially threatens those states that rely on revenues from industrial development to fund a wide variety of state programs for the benefit of their respective citizens.”

On August 11, thirteen states—including oil-and-gas “heavyweights,” as Natural Gas Intelligence (NGI) calls them, Alaska, Colorado, North Dakota, and New Mexico—became the latest to ask a federal judge to block the controversial rule from taking effect. The states have asked for a hearing on the motion during the week of August 24. NGI states: “The oil and gas industry is opposed to the regulations because they believe it could stifle development.” A statement from the Independent Petroleum Association of America supports this assertion: “The 297-page rulemaking would require a federal permit for any activity that results in a discharge into any body of water covered by the new definition of ‘waters of the United States,’ including small streams and wetlands.”

The Texas Railroad Commission, which oversees oil-and-gas activity in the state, joined the multi-agency, multi-state lawsuit because “the rule redefines navigable waters as used in the CWA, allowing the EPA and ACOE to regulate private land anywhere in the United States where water can conceivably flow—even dry creek beds and manmade ditches. The Texas economy is a proud beneficiary of shale drilling, and some of the water used in this process would move under the jurisdiction of the EPA with the implementation of this rule change.”

Luke Popovich, spokesman for the National Mining Association, told me: “This rule embodies all that is wrong with EPA’s overall oldmineregulatory approach: its costs will far outweigh any benefits, it violates both the spirit and intent of Congress in the Clean Water Act, and it has been sold as a benign attempt to add ‘clarity’ and ‘certainty’ to the marketplace when in fact it only clarifies and makes certain the threat EPA poses to a wide swath of the economy—from mining and farming to home building and construction.”

Jason Bostic, Vice President of the West Virginia Coal Association, adds: “It’s no longer about water or discharges. It’s about regulating the landscape.”

The lawsuit, filed in the U.S. District Court for the Southern District of Georgia filed on June 28, on behalf of nne Southeastern states (now 11, including Indiana and North Carolina), received an expedited briefing. Oral arguments were heard on August 12. Morrisey’s office told me they are hopeful for a decision by August 28.

North Dakota’s Attorney General Wayne Stenehjem believes the States are entitled to an injunction “because implementation of the Rule will cause immediate and irreparable harm and deprive the States of the opportunity to present the merits of their case prior to this unprecedented jurisdictional overreach taking effect.”

In addition to the 31 states, on July 2, a coalition of a dozen industry groups—from agriculture to manufacturers to mining—filed a complaint against the EPA and ACOE over the WOTUS rule.

The goal of the litigations is to delay or defeat the regulations before they go into effect.

Morrisey, in a statement, explains: “While the Clean Water Act gave the EPA and Corps authority to regulate ‘navigable waters’—defined as ‘waters of the United States’—Congress made sure that states would retain their constitutional, sovereign responsibility over non-navigable, intrastate lands and waters. The U.S. Supreme Court has twice rejected the agencies’ attempts to expand their authority (in Solid Waste Agency of Northern Cook County v. Army Corps of Engineers and Rapanos v. United States). However, this latest rule written by the two administrative agencies gives them virtually limitless power over these waters.”

vitter3Rules like WOTUS, and the recently announced Clean Power Plan, are lauded by environmental groups which are the likely impetus for the regulatory overreach. Senator David Vitter (R-LA), Chairman of the Small Business and Entrepreneurship Committee, sent a letter to EPA Administrator Gina McCarthy regarding “reports that the Agency inappropriately coordinated with outside organizations during the WOTUS rulemaking process.”

His statement on the matter offers this reprimand: “For decades, the Department of Justice has recommended that federal agencies do not lobby the general public to build political support for policies promoted by the Executive Branch. In 2014, the EPA embarked on an unprecedented public relations campaign, which may have violated anti-lobbying laws, to promote the WOTUS rule by working closely with outside organizations including the Sierra Club and Organizing for Action, which is closely affiliated with President Obama’s 2012 reelection campaign.”

Apparently, the EPA—which allowed millions of gallons of toxic waste to spill into the Animas River—and its “far-left environmental allies,” believe the agency can do a better job of protecting waterways, streams and wetlands than the states. A wide majority of states and industry disagree. The coalition hopes the lawsuits—which are expected to be combined into one—will overturn the rule and prove that the EPA has gone beyond its jurisdiction with this expansion of regulatory authority.

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About the Author: Marita Noon

Marita Noon

CFACT policy analyst Marita Noon is the author of Energy Freedom.,

  • Rev. Walking Turtle

    From the article: *Apparently, the EPA—which allowed millions of gallons of toxic waste to spill into the Animas River—and its “far-left environmental allies,” believe the agency can do a better job of protecting waterways, streams and wetlands than the states.”

    Balderdash in two parts. To wit:

    a) The EPA did not “allow” that massive cockup. By replacing elderly BUT PROVEN EFFECTIVE settling-area structures within the mine, the which were tagged-out as “leaky”, with a brand-new and Very Shiny (though structurally inadequate) “hermetic seal” device at the moputh of the outflow in question, the normal and ever-present natural inflow soon raised the depth of those pools to well over 300 feet within the mine cavity – the which depth forming a *MASSIVE* and *HEAVY* body of water trapped within the disused mine.

    But water always finds the path of Least Resistance.

    And so it was that the EPA’s Shiny New Plug-Um-Tight contraption plug blew out in due course. The force of the outrush in turn dislodged TONS and TONS more toxic materials from the mine’s interior walls etc within half an hour than the prior arrangement would have allowed out in half a century.

    So now they want to regulate anything that a paper boat might float in, hm. Well, one builds on one’s successes, does one not? So if success is officially defined by the Agency as being found in the infliction of the most wanton destruction possible and the exercise of arbitrary, absolute, tyrannical say-so from the get-go, why gee, then, MISSION ACCOMPLISHED! (Argh. Heaven farfend us all against those CRIMINAL schmendricken!)

    Tip: Do NOT put it past them. PLENTY that was once Worth Keeping is now destroyed by this current (and utterly oddball-from-Hel)l Executive Branch and its Agency Minyan.operating on US soil. Congress…? WE don’ NEED no STEENKEENG Congress!”

    B) Those inappropriate Private Non-Profit Bedfellows and the EPA have only one thing in common: GREED to acquire PRIVATE ASSETS for NOTHING by means of fiat, fees, fines and confiscations. So it is said these parties think they can protect the water better than anyone else, hm…

    “Protect” you say, Dear Author??? Like opd Pops Miller the downtown deli owner+operator gets protected by Guido and his sharp-dressed Goombahs because he pays every week and on time too, HM. THAT sort of protection is old as urban life. As above:

    Tip: Do NOT put it past them…

    Sad to see that Phantastic Phalanx of Phibbin’ Phed Phulez so phuishly descending to that level. All flows downstream from even above the Top, one may remember. But slavishly submit to it on command..? But WHY, when there IS *REAL* HOPE. IF YOU WILL HAVE IT.

    Now please, Good People, lissen UP. To wit:

    That manner of Corporatized Governmental Agency overreach, fraud and abusive action can indeed be stopped, Gentle Reader. It’s the same picture in all but three states – the Commonwealth States’ Constitutions are structured differently, though all three of those are Gone Corporate too. That leaves 43 duly-constituted Sovereign States AND the federal Government RIPE for the WVA Treatment, oh yes it does and OH YES WE CAN, OK.

    Fact: The seed is planted NOW. Been done in West Virginia already, and has stood for nearly two weeks now, did you know? From the Telly-Vision, maybe, already?

    NO? But Telly-Vision is so POWERFUL! Well, OK then. Heading over to http://hudok.info will soon get YOU the full downloadable DIY Emancipation Kit for the Natural Person on the Land. No gobbledygook, plain-spoken as legal writing can be; the case was won on its own merits by State Supreme Court DEFAULT(!) and the RIGHT way to beat ’em GOOD AND PROPER at their own game is now a matter of open public record.

    Now please and kindly DO turn to, Gentle People. Click-up a New Tab on http://hudok.info and you MIGHT want to pick up the phone or email someone after reading and thinking things through for a leetle while, oh yes. 😉

    Suggestion: Become a LAWFULLY FIERCE WARRIOR for the REAL LAW, the which EPA Rules are definitely NOT. Learn to DEFEND SOMETHING WORTH KEEPING, even if it must be regained to be properly kept, OK.

    Tip: This is NO DRILL. It is a BEAUTIFUL day! And that is all. 0{:-|o[

  • Austinniceguy

    What idiot thought up this incredibly stupid proposal. I will immediately call up the governor of Texas, my home state, and demand that we be included in the lawsuit, if we are not already. Gov. Abbott LOVES to sue the fed and this should be right up his alley. He also understands that we don’t do well giving up any of our rights or having things taken from us through eminent domain. There was, perhaps “divine intervention” at play when that horrible contamination took place. Perhaps a greater power wanted the DOUCHEBAGS at the EPA to be exposed for the idiots that they really are.

    • Marita K Noon

      Not to worry. Texas is in!

      • Austinniceguy

        Thanks, Marita, you saved me time and I appreciate that. Leaves me open to search out other items to attack. Have a great day!!!

  • MILES E DRAKE

    It is very likely that the EPA intentionally released these chemicals as a kind of environmental Reichstag Fire intended to stampede the people and the Congress into giving it more money and more power. We know that this has been done with racial tensions and incidents, most recently a transparent recent attempt to reignite riots in Ferguson in order to gin up support for quotas and race-based law enforcement. It is quite likely that at least some of the shooting incidents hysterically presented as justification for gun confiscation were the work of the regime, and it is incontrovertible that many “hate crimes” related to sexual orientation were faked by gay activists and a cooperative government in order to justify more aggressive regime intervention. We have a criminal puppet government whose people are on to it, and they are doing and will do anything they need to to hold on to power; this is why we are likely to need oath-keeping military officers during the next year.

  • AllenBarclayAllen

    People We never needed the EPA! Class Action Lawsuit is how you tackle Polluters, and that hasn’t changed. The EPA is now a Polluter and this Stunt they pulled here is just as big as BP’s Gulf of Mexico Oil spill in negligence !! Craig Rucker : CFACT Its about time we started a Class Action Lawsuit against the EPA PEOPLE ! The EPA—which allowed millions of gallons of toxic waste to spill into the Animas River !! They Are not EXEMPT!! The EPA a SIGNIFICANT POLLUTER HERE, NOT EXEMPT FROM CLASS ACTION LAWSUIT !! GET HER DONE CFACT !!

  • AllenBarclayAllen

    WOTUS Obama Water rights Rules Violate All of our State’s Existing Water rights Real property Law administered by General warranty Deed document Stamps Guaranteeing the Owner free Legal representation from every Lawyer in the State if necessary ! The Biggest lobby in the USA the Law Lobby are on the hook to defend any and all of our water and Property rights !! Should have payed better attention in law college Obama Property Contract law !! Try to evict us off our property and these lawyers will evict you from the Entire Tax Code and the White House with all of your Unconstitutional Polluters the EPA !! EPA Thou shalt not bite the hand that feeds you !!

  • Mervyn

    Are we saying that absolutely nothing can be done to hold the EPA in check and prevent it from extending its tentacles in a way never intended but in a way that pleases the United Nations because it is acting in line with the UN’s AGENDA 21.