Posted 10/11/2013
EPA MERELY? ONLY? requires property owners TO GET AN EPA PERMIT?
A private property owner will MERELY? ONLY? spend 788 days and MERELY? ONLY? spend $271,596 working with federal authorities
TO GET AN EPA PERMIT?
(MERELY? ONLY? a TEMPORARY FINANCIAL setback?)
Another study showed that projects abandoned due to an
INABILITY TO GET SECTION 404 PERMITS COST AMERICANS SOME $45 BILLION IN 1990.
(MERELY? ONLY? a PERMANENT? $45 BILLIONFINANCIAL setback IN 1990?)
EPA the Environmental Protection Agency and the Army Corp of Engineers, the two entities that administer the CWA, MERELY? ONLY? COST AMERICANS SOME $45 BILLION IN 1990.
(MERELY? ONLY? a PERMANENT? $45 BILLION DOLLAR FINANCIAL setback?)
Bottom line
EPA study could be used to expand reach over non-Clean Water Act waters
How much MORE? WILL IT MERELY? ONLY? cost Americans in the future if this ABUSE of EPA Power IS ALLOWED TO CONTINUE?
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SACKETT V. U.S. ENVIRONMENTAL PROTECTION AGENCY
(Was this merely? ONLY? a TEMPORARY SETBACK to the SACKETT’s?)
Case | PLF and the Sacketts: an important win at the Supreme Court …
www.pacificlegal.org › … › Issues & Cases › Environmental Regulations
SACKETT V. U.S. ENVIRONMENTAL PROTECTION AGENCY. Contact: Damien M. Schiff … Mike and Chantell Sackett, of Priest Lake, Idaho, who were told by EPA — and by …
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How much did it cost the SACKETT’s in this ABUSE of EPA Power?
EPA ISSUED A “COMPLIANCE” ORDER, demanding that the Sacketts stop construction, remove the gravel and return the land to EPA’s liking. Moving the gravel would cost $27,000 — more than what the Sacketts paid for the land.
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“BULLYING – that’s what the EPA does. They came into our lives, TOOK OUR PROPERTY, put us in limbo, told us we can’t do anything with it, and then threatened us with fines.” — Chantell Sackett, The Washington Times
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“The EPA used BULLYING and THREATS of terrifying fines, and has MADE OUR LIFE HELL FOR THE PAST FIVE YEARS. Now the Supreme Court has come to our rescue.” — MIKE SACKETT, LA Times
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“Federal agencies are OUT OF CONTROL. The grant of virtually unlimited power with no accountability has gone to the heads of some unelected bureaucrats, and nowhere is that more true than at the Environmental Protection Agency (EPA).” — The Washington Times
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“EPA is not above the law. That’s the bottom line with today’s ruling.” — PLF Principal Attorney Damien Schiff, CNN
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“There is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review.” — Justice Antonin Scalia, New York Times
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“Real relief REQUIRES CONGRESS to do what it should have done in the first place: provide a reasonably clear rule regarding the reach of the Clean Water Act.” — Justice Samuel A. Alito, Jr., New York Times
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“As this nightmare went on, we rubbed our eyes and started to wonder if we were LIVING IN SOME TOTALITARIAN COUNTRY.” — MIKE SACKETT, The Christian Science Monitor
How much MORE? WILL IT MERELY? ONLY? cost Americans in the future if this ABUSE of EPA Power IS ALLOWED TO CONTINUE?
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This posting was inspired by Oct. 1-7 2013. The Liberty and Property Rights Coalition is committed to promoting and preserving Constitutional rights to liberty and property in public policy and the law.
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EPA study could be used to expand each over non-Clean Water Act waters
Federal regulators may be able to assert Clean Water Act jurisdiction over more waters and wetlands than are now protected on the basis of a draft scientific study that links all streams and certain wetlands with larger, downstream navigable waters, attorneys and policy analysts say.
The Environmental Protection Agency’s draft study finds that all tributary streams, including perennial and the previously unprotected intermittent and ephemeral streams, are physically, chemically and biologically connected to downstream rivers.
(Bloomberg BNA)
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February 2012 • No. 0030
Clean Water Act Abuse: Wetlands
Protection Under Section 404
The Clean Water Act (CWA) was enacted in 1972 to “to restore and
maintain the chemical, physical, and biological integrity” of the nation’s
rivers, lakes, and streams.2 But for years federal regulators have used the
CWA to relentlessly expand their reach over both land and water use.
One particularly controversial example is the use of the CWA’s Section 404,
which covers wetlands.
A plain reading of Section 404 gives no indication of federal jurisdiction over wetlands.
The statute MERELY requires property owners TO GET A PERMIT
before they discharge “dredged or fill material into navigable waters.”3 The
CWA defines navigable waters as “waters of the United States, including the territorial seas.”
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WETLANDS ARE NEVER MENTIONED.
Nevertheless, years of legal battles have allowed federal environmental
regulators to expand their jurisdiction to include wetlands, mainly by:
1) Interpreting “navigable waters” to include wetlands (even if they are not
“navigable” by any stretch of the imagination), and
2) Prohibiting many more activities on wetlands besides filling them with sand or dredged material.
“NAVIGABLE WATERS” AND THE EXPANSION OF FEDERAL REGULATION
The Constitution’s “commerce clause” allows the federal government to regulate only interstate commerce; any activities that occur entirely within a state (“intrastate”) and do not have a significant impact on interstate commerce must be LEFT TO THE STATES TO REGULATE.
To avoid running afoul of this CONSTITUTIONAL LIMITATION, the CWA was designed to regulate only “navigable waters” of the United States – waterways that are involved in interstate commerce via activities like boat traffic. It is not clear that wetlands fall under this definition, but federal regulators have included wetlands in several CWA implementing regulations anyways in their quest to expand their jurisdictional reach.
In 2006, the Supreme Court halted this expansion, arguing in
Rapanos v. United States
that the Constitution called for some limit to the CWA’s regulatory reach. John Rapanos faced criminal charges for filling in a marsh that was entirely on his own land in Midland, Michigan in order to build a mall. Filling in this wetland, even though it had no significant nexus to any navigable waterway, violated the CWA according to federal regulators.
The Supreme Court reversed the charges, with Justice Scalia remarking that federal regulators had “stretched the term ‘waters of the United States’ beyond parody.” The CWA could not be used to restrict activity on private property like that owned by Mr. Rapanos because it was not directly connected to “navigable waters” (and thus interstate commerce).
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However, a recently released guidance document from the Environmental Protection Agency and the Army Corp of Engineers, the two entities that administer the CWA, carefully circumvents the Rapanos decision and again attempts
to expand regulators’ jurisdiction to include isolated wetlands or anything resembling a wetland.
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This has set off considerable backlash from conservative lawmakers and various legal scholars.
QUICK FACTS NOTABLE& QUOTABLE
• The average applicant hoping to develop his or her own property that contains a
wetland will spend 788days and $271,596 working with federal authorities to do so.
“EPA’s interpretation of the Clean Water Act…
knows no bounds, as the agency sees nearly every body of water in the United States no matter
how insignificant, as potentially falling within its reach.”
–SEN. JAMES INHOFE (R-OK)
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Americans for Prosperity Foundation’s “Need to Know” informational series explores current events
andrecent scholarship on public policy issues from af ree-market economics perspective.
A full list of“Need to Know”briefings is available at
www.Americans For Prosperity Foundation.com/NeedToKnow.
©2012Americans for Prosperity Foundation. All Rights Resrved.
Endnotes:
SENATE COMMITTEE ON ENVIRONMENTAND PUBLIC WORKS
SEPA Water Permitting Guidance Widely Extends Federal Bureaucracy Over Water Bodies
(April 27, 2011) (online at http://epw.senate.gov/public/
cfm?FuseAction=Minority.
id=&Issue_id=).
2. Federal Water Pollution Control Act
(“Clean Water Act”), Sec. 101 (33 U.S.C. 1251) (hereinafter “CWA”).
3. CWA, Sec. 404 (33 U.S.C. 1344).
4. CWA, Sec. 502(7) (33 U.S.C. 1362).
5. Rapanos v. United States
, 547 U.S. 715 (2006).
6. ENVIRONMENTAL PROTECTION AGENCY AND ARMY CORPS OF ENGINEERS
Draft Guidance on Identifying Waters Protected by the Clean Water Act
(April 2011) (online at http://www.epa.gov/indian/pdf/
7. Avoyelles Sportmen’s League, Inc. v. Marsh
, 715 F2d 897 (5th Cir. 1983) (online at http://www.wetlands.com/fed/
Save our Community v. EPA , 741 F. Supp 605 (N.d. Texas 1990) (online at http://www.wetlands.com/fed/
socvepa1.htm); Richard Miniter, ‘WETLANDS’ SEND MAN UP THE RIVER, INSIGHT ON THE NEWS,
vol. 8, No. 50 (decem-ber 1992) (online at http://richardminiter.com/pdf/
8. Benjamin Barr, Muddy Waters: Deconstructing the Clean Water Act in Arizona, THEgOldWATERINSTITUTE
(January 29, 2008) (online at http://goldwaterinstitute.org/
Prohibiting More Than Just Dumping Dirt?
Regulators have also done much more than prohibit the “discharge of dredged or fill material”
into wetlands, as the statute says. In a number of cases they have also banned activities that
might discharge pollutants into or otherwise incidentally disturb the wetland, under the
assumption that any pollution coming into contact with wet soil will eventually make its way
into navigable waterways through ground water flows. Federal courts have been complicit,
concluding that clearing wetlands for agricultural production, draining or otherwise altering
wetlands, or even creating new wetlands on private land all violate Section 404.
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Effects on Private Property Rights and the Economy
When environmental regulations like these prevent private property owners from building
housing or commercial real estate, clearing and cultivating for agriculture, or extracting natural
resources on their own land, this causes a severe deterioration in the value of their property.
Imagine the frustration of buying a plot of land only to have the land rendered unusable by
OVER-ZEALOUS FEDERAL REGULATORS.
Thankfully, there are Constitutional protections to safeguard property owners from regulators. Courts have ruled that when the federal government regulates private property so intensively that it essentially prohibits any valuable use for the landowner, these “REGULATORY TAKINGS” make the property owner eligible for “JUST COMPENSATION” from the government under the Fifth Amendment.
In other words, if the federal government completely destroys property’s value in the name of
ENVIRONMENTAL PROTECTION, they must pay the owner for it just the same as if they
had taken it outright.
Unfortunately, court cases like these are often drawn-out and ultimately fruitless affairs, wasting property owners’ time and money.
In the end, property owners’ primary recourse is to apply for a permit and cross their fingers
that the government will approve it. But this is an arduous process and often results in failure.
One study found that the average applicant hoping to develop his or her own wetland property
will spend 788 days and $271,596 working with federal authorities to do so; another study showed that projects abandoned due to an inability to get Section 404 permits
COST AMERICANS SOME $45 BILLION IN 1990.
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Those compliance costs and lost opportunities represent a significant barrier standing in the way of activities that productively contribute to our economy. americansforprosperityfoundati
Environmental regulations’ strict requirements can cause serious damage to private property values.