Boots & Sabers

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0613, 13 Oct 15

Water Power

My column for the West Bend Daily News is online. Check it out:

A federal court has stepped in to temporarily halt the implementation of yet another of President Barack Obama’s oppressive regulatory overreaches. This time, it involves a regulation that would assail the private property rights of virtually every American and have a devastating impact on businesses big and small.

Beginning in 1948, the federal Clean Water Act has given the federal government the responsibility of regulating the “waters of the United States.” The act has been tweaked and revised over time, but the jurisdiction of the federal government to regulate the waters of the U.S. has always extended to navigable waters like permanent rivers, lakes, and territorial seas.

The most recent court case arose out of a new rule from the Environmental Protection Agency and the Army Corps of Engineers to greatly broaden the definition of “waters of the U.S.” The rule was enacted in April of last year that redefined “waters of the U.S.” to include almost every damp spot in the nation. The rule gave the federal government jurisdiction over many other types of waters, including “tributaries,” “adjacent waters” and the catchall “other waters.” They explicitly included streams that only occur after a rain and waters that are not connected to jurisdictional water.

Why does this matter? If the regulations are allowed to go into effect, it would give the federal government power to directly regulate almost every property in the nation that occasionally gets wet. If water pools on your property during a rainstorm or there is a drainage ditch on your farm, the EPA would have the power to regulate your property. In practical terms, that means that any time a homeowner, business or farm wants to make any changes to their property, they would be required to get permission from the federal government and possibly have to pay for expensive environmental impact studies and environmental mitigation.

A federal judge in North Dakota had already stayed the rule, but the Obama administration decided to interpret the ruling as only applying to the 13 states in that federal district. This time, the Cincinnati-based Sixth Circuit Court of Appeals also stayed the rule and made it clear that the stay applied nationally.

The court issued the stay because it contends that the petitioners, representing 18 states, have a good chance of succeeding in their lawsuit against the rule. The court further said that, “What is of greater concern to us, in balancing the harms, is the burden — potentially visited nationwide on governmental bodies, state and federal, as well as private parties — and the impact on the public in general, implicated by the Rule’s effective redrawing of jurisdictional lines over certain of the nation’s waters.”

The case still needs to wind its way through the legal process, but for now the citizens of the U.S. will not be subjected to yet more regulatory control from Washington.

While the onslaught of regulation has been temporarily halted, one does have to worry about this continued push by the federal government into every aspect of our lives. In this case, two federal agencies have gone through a considerable effort to redefine an existing definition for the express purpose of expanding their authority into areas never envisioned by Congress. With no mandate from the citizens to do so, these agencies are expanding their power without a single vote being taken by any elected representatives of the people.

Some of the explanation for this aggressive offensive by federal agencies may lie in the inexorable momentum of all bureaucracies to expand their power, but there is more to it than that. Particularly when one considers that the EPA has police powers and spends roughly $75 million per year on special agents equipped with the latest in military weapons and technology, it is worrisome that they would take such an aggressive action to expand their authority into the backyards of virtually every property owner in the nation.


0613, 13 October 2015


  1. Mike

    It’s time to take the police powers away from all of the administrative offices except the US Marshal’s service. The Marshal’s should conduct criminal investigations. They can also conduct security operations if needed.

  2. Mike

    It’s time to take the police powers away from all of the administrative offices except the US Marshal’s service. The Marshal’s should conduct criminal investigations. They can also conduct security operations if needed.

  3. scott

    Might the new rule use overly broad language? Maybe. Does the danger rise to the level that West Bend citizens need to be informed and worried about it? Certainly not. Stories like this aren’t really about regulatory agency rules being adjudicated in federal…whoa, I almost fell asleep at the keyboard! No, the story is scratching two of conservative’s favorite itches: environmentalism is bad and Obama’s jackbooted thugs are on their way.

    Seriously? We’re worried now that the EPA is using military equipment? On my list of things that keep me up at night, that’s about…well, I think I’ll wait until John Oliver does a monolog about it before I give it another thought.

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