Friday, November 22, 2013

Is The EPA Coming for Your Back Yard?

A river runs through it -- and Uncle Sam isn't far behind.

That's what several Republican lawmakers and even state farming groups and local governments are warning, after a draft rule from the Environmental Protection Agency proposed expanding which waterways are federally protected under the Clean Water Act.

The concern is that the move could give the feds authority over virtually any stream or ditch, and hand environmentalists another way to sue property owners. In other words, critics say, the government might soon be able to declare jurisdiction over a seasonal stream in your backyard.

If so, good luck getting a permit to expand building space on your property, or marketing your land to prospective developers.

"(The) draft rule sent to the White House for review could expand the EPA's regulatory power to give the agency unprecedented new authority over seasonal streams and ditches on private property," Rep. Lamar Smith, R-Texas, chairman of the House Science, Space and Technology Committee, said in a statement to
This would directly apply to us.  As you may or may not be aware, we own three undeveloped lots behind our house, and downhill, at the bottom of those lots, runs a small ditch.  It used to be a stream, before the street was developed, but it is now ditched, partially underground through culverts.  It runs, well, seasonably.  Usually in winter, occasionally in a strong summer storm.

EPA, and their supporters deny that any land, or rather water, grab is in the works:

The EPA flatly denies this charge. Officials told that the draft rule, which was published on Nov. 8, is nothing like its detractors claim. "The proposed rule would not expand EPA's or the (Army Corps of Engineers') jurisdiction or protect any new waters that have not historically been covered under the Clean Water Act," the agency told

"In fact, the proposed rule specifically takes into account the more narrow reading of Clean Water Act jurisdiction established by the Supreme Court."

The EPA and its supporters say "mass confusion" over what constitutes a protected water body under the 1972 Clean Water Act (CWA), has been fueled mostly by a host of narrow rulings by the Supreme Court, and a lack of clarity in the current law.

In the most recent court case, Rapanos v. The United States, Justice Anthony Kennedy proclaimed that in order for an isolated wetland or smaller body of water (like a stream) to be protected under the CWA, the science must show a "significant nexus" to waters already protected under the law, like major river systems and lakes.
The nexus in our case is clear; the little stream runs into the Chesapeake Bay, which of course, is not only a water body that the EPA has clear authority over, it is one that the EPA has declared impaired, and forced a large number of invasive and expensive plans on local governments and businesses in the form of the 'Bay Diet.'

EPA is well known for it's tendency to see connections "nexuses" if you like, between everything, so yes, I suspect that if they are given the succeed in claiming the authority, they will  try to enforce it as widely as possible.

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