Proposed water rule puts Americans at EPA’s mercy

By |2014-11-13T16:33:02+00:00November 13th, 2014|CFACT Insights|28 Comments

It seems incredible, but a single missing word could turn a water law into a government land grab so horrendous even a U.S. Supreme Court justice warned it would “put the property rights of every American entirely at the mercy of Environmental Protection Agency employees.”

The missing word is “navigable.” The Obama administration is proposing a rule titled “Definition of ‘Waters of the United States’ Under the Clean Water Act,” which would strike “navigable” from American water law and redefine any piece of land that is wet at least part of the year, no matter how remote or isolated it may be from truly navigable waters, as “waters of the United States,” or WOTUS.

The proposed rule would provide EPA and the Corps of Engineers (as well as

Puddles, ponds, ditches, ephemerals — the EPA wants to regulate it all. (Photo: American Farm Bureau Facebook)

Puddles, ponds, ditches, ephemerals — the EPA wants to regulate it all. (Photo: American Farm Bureau Facebook)

litigious environmental groups) with the power to dictate the land-use decisions of homeowners, small businesses and local communities throughout the United States. There would be virtually no limit to the federal government’s authority over private property.

Puddles, ponds, ditches, ephemerals — the EPA wants to regulate it all.

The proposed rule has ignited a firestorm of protest. Agricultural and business interests, free-market think tanks, state agencies, attorneys general and governors have joined the “Ditch the Rule” movement and demanded it be withdrawn.

The Obama administration is conducting an aggressive shield campaign to downplay the proposed rule’s huge negative impacts and paint critics as opponents of clean water, shills for development interests or anything other than concerned citizens.

Obama’s own political shills for anti-development interests, such as Organizing for Action, Natural Resources Defense Council and Clean Water Action, are marching in lockstep with the agencies to discredit any opposition to the rule.

But recently, a group of 25 U.S. senators called out the Obama administration for misleading Americans on the proposed rule. In a scathing letter to the EPA and the Corps, the senators detailed the administration’s deceptions and bias:

  • The Obama administration claims the proposed “Waters of the United States” rule responds to prior requests for a Clean Water Act rulemaking. It does not.
  • The Obama administration insinuates that opposition to the proposed rule is equivalent to opposition to clean water. It is not.
  • EPA has attempted to delegitimize questions and concerns surrounding the proposed rule. Concerns are legitimate.
  • EPA and the Corps have blatantly misrepresented the impacts of increased Clean Water Act jurisdiction. The impacts are real.
  • EPA’s social media advocacy in favor of the proposed “Waters of the United States” rule prejudices the rulemaking process. It kills debate.

Affected parties are more credible in this battle than the administration. The American Farm Bureau started the “Ditch the Rule” movement with pictures that showed what the EPA and Army Corps of Engineers would regulate if the Waters of the United States rule takes effect: “wetlands” that are nothing more than low spots on a farm field, the decorative pond of a suburban home or even a vacant lot that the agency designates as possessing the requisite wetness.

If the farmer fills in low spots or the homeowner builds a child’s playhouse by the pond, or a business constructs a new office on the vacant lot or anyone touches any bureaucrat-designated “wetland” in any way, the EPA or Corps may order the owners to cease activity, restore original conditions and abandon any use of the property.

If the owners do not comply, they could be fined up to $75,000 per day—$37,500 for violating the rule and another $37,500 for violating the agency’s order. The property owner is blocked from going to court until sued by the agency, which could dawdle until fines have skyrocketed into the millions.

A promotional graphic the American Farm Bureau put out to stress their
“Ditch the Rule” campaign.

That’s no exaggeration.

A promotional graphic the American Farm Bureau put out to stress their “Ditch the Rule” campaign. (Photo: Farm Bureau)

A promotional graphic the American Farm Bureau put out to stress their
“Ditch the Rule” campaign. (Photo: Farm Bureau)

It’s from Supreme Court Justice Samuel Alito’s concurring decision in the 2012 case of Michael and Chantell Sackett, an Idaho couple who placed fill material on their property to build their dream home and suffered exactly the outrageous treatment the justice described.

After failing in lower courts, the Sacketts finally won a Supreme Court ruling that they had the right to sue the EPA for exceeding the reach of the Clean Water Act. At least three other Supreme Court rulings have rejected parts of the administration’s interpretation of the Clean Water Act.

The Supreme Court trumps the President of the United States, and in this instance shares the concerns of the “Senate 25.” But none of the high court’s decisions answer the exact question: What is the reach of the Clean Water Act?

Therein lies the crux of the WOTUS menace: The reach of the Clean Water Act is notoriously unclear, and EPA and the Corps have kept it that way.

The Farm Bureau is particularly concerned by EPA’s refusal to answer direct questions such as, “Name three things that get wet, like roadside drainages, irrigation ditches, and livestock watering ponds, that would not be regulated by WOTUS.” Dead silence. And a permit to do anything in a designated “wetland” can cost upwards of $250,000.

The National Federation of Independent Businesses asserted in its official comments to the EPA, “The CWA is unconstitutionally vague because the regulated community cannot readily determine whether a given property is, or is not, a jurisdictional wetland.” The uncertainty helps the Obama shield campaign.

Two weeks before the Senate 25 called out the EPA, the attorneys general of 11 states and the governors of six states sent a similar letter to the EPA and the Corps.

“This rule should be withdrawn and replaced with a common-sense alternative that respects states’ primary responsibility over lands and waters within their borders while also giving land owners clear guidance,” the letter stated.

Scott Pruitt, Oklahoma’s attorney general and a leader in drafting the states’ letter, told The Daily Signal, “The proposed ‘WOTUS’ rule unlawfully and unconstitutionally asserts federal control over local water and land by needlessly replacing state and local land-use management with top-down, federal control.”

“Unlawful” and “unconstitutional” are not words attorneys general use lightly. When asked to size up the overall issue, Pruitt said, “The WOTUS rule appears to be another attempt by federal agencies to implement an agenda through regulations to affect land-use decisions that should be left to the states and private property owners.”

In September, the House passed bipartisan legislation, H.R. 5078, that prohibits the EPA and Corps from finalizing the WOTUS rule. A companion bill is stalled in the Senate.

With the coal industry overpowered, Obama’s rogue administration looks to have declared war on the rest of us.

This article originally appeared at the Daily Signal


  1. Jim Kuhn November 14, 2014 at 11:05 AM

    EVERYONE needs to be concerned about this…it is nothing less than a monstrous land/water control grab by the Government. Get acquainted with your Constitution, look up and read the section that designates what land the Government can actually claim and have control of. The Government/BLM/EPA does NOT own our lands, they have grabbed control unconstitutionally while Americans have been asleep at the wheel. Article 1, Section 8 defines how very little the Government can actually “own”…and that is only with the consent of the States…

  2. Allen Barclay Allen November 14, 2014 at 12:45 PM

    This will wind up in Supreme Court, because Millions of Lawyers in the US are on Retainer For Document stamps of General Warranty Deed property owners. Mr. President Our Lawyers are free and yours are Stupid Government Lawyers that cannot Survive in a real Lawyers world. We the People in every Law Group have all these Lawyers on retainer. You sir should have payed attention in that class in College. General Warranty Deed Document Stamps cannot be retroactively controlled by a EPA Communist, Its the Law.

  3. Kathy November 14, 2014 at 12:55 PM

    Just look at what they tried to do in my home state of Texas…37,000 acres of land they tried to “steal.” We could do pretty well on our own. Texas has more oil than the entire US and Saudi Arabia combined, over 1000 upper Middle Class families are fleeing here everyday, we have a balanced budget and do not take a dime from the Obama Regime because we know and understand that nothing from Obama is ever really free. We only take what the Federal government owes us through SS and Medicare. And the Veterans of course. Now, we want them to repay us for use of our own State Militia during the invasion which is still continuing. I mean the invasion at our Southern border for it is nothing less than that…an invasion from foreign governments. Imagine how they will act when they find that they cannot absorb as the Federal government thinks they can. We have been criticized for NOT taking Federal monies. But, we could do very well on our own, thank you very much. The ultimately worst thing we ever did was lose our “Nation of Texas” and enter the Union in 1815. I know that Texas was once part of Mexico, as we do teach our state’s history to our students, much to the chagrin of the Obama Administration. But, I do not want to feel as if I live in the interior of Mexico, which in San Antonio, TX, that is about it. Now, with this dictators illegally legalizing aliens who he hopes will vote democratically in 2016, all I can say is now we hold the power of the purse and when it becomes clear that they will not get all of the “goodies” they believed they would get, they will begin to do what they do best, what our ranchers on our borders have been going through for years…molesting, breaking in to homes, and yes, pillaging as they have been doing on the border. The UN wanted a “Sea Treaty” which would give every resource from our creeks, streams, and International waters to the UN. This is the backbone of WHY the EPA has been “Given” our water rights. It is only one of the promises Obama made to the UN.

    • UnitedStatesofPlutocracy November 15, 2014 at 11:42 PM

      I’m also a damn proud Texan, a little north of that liberal cesspool, Houston. I agree with you, and will add that according to Article 1 Section 8 Clause 4 CLEARLY states that ONLY congress has authority over naturalization/immigration etc. Obomb-a, the Marxist, mu-slime, failure n thief doesn’t give a damn, because all he has to say is, “racism” and “bigotry” to sit most of the cowardly repubs back down. They’re more worried about KEEPING their jobs than DOING their jobs.

      But, back to the great state of Texas…
      We refine over 80% of ALL oil in the country, have vast natural resources(from oil to gold, and everything in between)Houston is hailed as the “new silicon valley” due to our expansive tech sector, we have the 2nd busiest port in the country, but it’s THE busiest in tonnage, we are the ONLY state to have been it’s own republic(1836-1845). We declared our secession from America in early 1861 and joined the Confederate States of America on March 2, 1861 until the end of the Civil War.

      Article 1, Section 1 of the Texas Constitution states that “Texas is a free and independent State, subject only to the Constitution of the United States…” it does NOT state “…subject to the President of the United States…” or “…subject to the Congress of the United States…” or “…subject to the collective will of one or more of the other States…”

      When the reps take control in Jan, people need to contact every last damn one of them to defund and abolish the BS agencies like the IRS and EPA, because they WILL be used against us again

  4. wally12 November 14, 2014 at 1:12 PM

    The EPA did some good when it was first implemented. Hazardous waste was one and air pollution rulings were another. The EPA nor any other federal laws were the first agency to implement those hazardous waste rulings. In fact, the state of Texas had a waste program that was used as the EPA’s guide in the initial law. It proved two facts that one the initial rules were reasonable and that states have the ability to make and control pollution by themselves without federal controls. I believe the EPA wants the law wording to be changed to eliminate future SCOTUS from limiting their powers and to prevent that loss of power that was evident in the favorable Sackett Idaho decision by the SCOTUS. In other words, the EPA goal is to become all controlling. If they succeed, the US as we know it is domed.

    • Peter Osborne November 14, 2014 at 2:15 PM

      Indeed, you are correct, the so called EA wans to control everything. The kooky left thinks we are too stupid to read our own bank statements , tie our shoes, or butter tast. They need to be fired, power cut WAY back and replaced.

      • theronald November 15, 2014 at 2:45 PM

        EPA = Employment Prevention Agency

    • rhetorical1 November 14, 2014 at 2:43 PM

      Agenda 21. bho and the epa are in cahoots to implement the agenda and the UN can’t wait to get their hands on America. The New World Order, is what they are striving for. Power, control, and the dumbing down of America is what we have to look forward to.

      • ninetyninepct November 14, 2014 at 8:46 PM

        And their dumb down dumb leader is the world famous islamist terrorist supporter and lover, akbar hussein, a hero of ISIS.

      • theronald November 15, 2014 at 2:45 PM

        Ditch the UN. Then we don’t have to worry about the NWO.

    • allosaur November 14, 2014 at 6:45 PM

      The EPA has turned into a socialist rat pack of bureaucratic control freaks who financially destroy people’s lives all for a “good” annual job evaluation. I’m all for abolishing this agency. Let local law enforcement deal with polluters and litterbugs.

  5. ONTIME November 14, 2014 at 1:18 PM

    Now that there has been a change in the seats of power the EPA will be on the hot seat and in danger, rightfully so, of being admonished, downsized or possibly defunded, it is another government agency that is a ad hoc mandate factory for the circumventing of our elected representation …..Time for huge changes in our government to restore our representation and force government to earn the trust of those who own it….

    • pookieamos December 28, 2014 at 3:31 AM

      But you surely see that it doesn’t matter R or D , the EPA will never be reigned in….We must first have a president , a Congress and a Senate with the fortitude and respect for the Constitution to abolish the system that controls both parties…..First we must have a citizenry smart enough to come together to do this.

  6. Peter Osborne November 14, 2014 at 2:07 PM

    Don’t downsize it, abolish it and replace it with a new agency that has greatly reduced rules making capability and must respond to the Congress upon request or have their employment terminated without appeal. At this point the serve only the radical anti business left.

  7. Leon Barber November 14, 2014 at 2:18 PM

    Good article Ron Arnold. The people need to stay on top of all these government grabs taking place, as the preceding comments stated.

  8. Rapparree November 14, 2014 at 2:31 PM

    The EPA, like unions before them, started out doing great
    things. But as their usefulness waned, they started to get into things that
    were beyond their purview, mostly to stay in business and keep their jobs.

    Time to rein-in and disassemble the EPA. Cut their funding to a few dollars –
    just enough for a staff of 6 to 8 people to man a kiosk on the Washington Mall,
    where they could hand out pamphlets entitled: “What the EPA Used to Do” to

    • ninetyninepct December 2, 2014 at 8:25 PM

      The staff and management of the EPA had better be very careful. They could very likely end up being sued personally for some of their decisions and actions. Can they spell “bankrupt”? How about “homeless”?

  9. mjhiggs November 14, 2014 at 3:04 PM

    CONTROL! CONTROL! CONTROL! It’s all about Control! Big Brother wants to regulate and control every aspect of our lives. Every year there are tens of thousands of new laws passed by the local, state, and Federal governments. So many of these new laws and regulations are not voted upon by legislatures, but by government employees. We are becoming pawns and slaves to Big Government!

  10. The Messenger November 14, 2014 at 4:49 PM

    Liberalism is a mental disorder and there is no cure what so ever. Defund the EPA, now. If congress won’t do it, we will vote them out and find someone who will listen and represent the will of the people. P.E.R I.O.D.!

  11. spike November 14, 2014 at 8:47 PM

    When we see how the huge – run by bureaucrats – organizations “rule” and have the authority of “law” – doesn’t it doubly amaze you that we allowed them to take over our health care?! and it will be a much bigger and even more powerful group of bureaucrats.

  12. theronald November 15, 2014 at 2:48 PM

    EPA = Employment Prevention Agency.

  13. Marcia Fridland November 15, 2014 at 4:14 PM

    For far too long, members of the EPA have been proving themselves to be intellectually limited while determined to abuse any power that has been given to them. It is past time to close down the group entirely. Supporting the EPA has been a waste of our tax dollars, but that is the least of it. The policies that department would like to
    impose on us have the potential to destroy our economy, our culture, and the freedom that has made this country great.

  14. UnitedStatesofPlutocracy November 15, 2014 at 11:14 PM

    This is just more Agenda 21, just like how the U.N is in control of many of our national parks(look it up if you haven’t heard/don’t believe).

  15. francis November 26, 2014 at 2:27 PM

    Impeachments and High Treason and Murder games by Sharpton, all should be put in Leavenworth for live

  16. ninetyninepct December 2, 2014 at 8:20 PM

    Question – if the EPA is grabbing ownership of all wet spots in the country, could they not be sued for such things as mosquitoes, disease, pollution, drought, flood and ALL the effects from all of this crap?? After all, it will be their water. Sue their asses due to too much water flooding your home or business, sue for lost income, sue for roads being washed out, sue for crop failure, sue for rainstorms, sue, sue, sue.

  17. pookieamos December 28, 2014 at 3:27 AM

    Ever since I heard about the EPA contemplating removing the word ” navigable ” from the CWA on the Missouri Farm Report years ago , I just knew the ultimate goal was to control all of America….If you are fully aware of UN Agenda 21 and how our own federal agencies have been making rules and regulations which involve environmentalism which align with the United Nation’s , you’ll understand just why they want to do this….Please google the UN Biodiversity Map for the United States and you’ll see their diabolical plot to seize all lands of America . It will mean the confiscation of private property rights , forced relocations. We will be told where we will live , where we will work , they will control all life.

  18. pookieamos December 28, 2014 at 3:48 AM

    Forgot to mention….This is how the EPA seeks to gain control of all rural lands. Care to guess how they’ll gain control of cities ? Through illegally mandated and unfunded sewer overflow projects they are forcing on major cities. We, here in St.Joseph Missouri had city leaders who refused to fight the EPA and bowed to their threats of suing the city. Water over flow from rainstorms into the Missouri River from our city never negatively affected the rivers quality…But the EPA claimed it must be done.Now we have a sewer bill that is double what our water bill is every month. This is happening all over the country. Once the city council put it to a vote by the people and the people passed it, the EPA gained control of our water usage and most likely any property where water is used.Now the EPA is telling us we must have a new plant to remove something else….Sewer bills once again have gone up . Detroit is experiencing water cut offs because people can’t afford their new sewer bills. When they shut your water off , they can CONDEMN your home…….Told you so.

  19. Coleman Alderson May 27, 2015 at 9:46 PM

    Excellent piece, Ron. As fourth generation coal biz, we’ve been dealing with this for decades. The future does not bode well with these mendacious statist autocrats in charge.

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