SCOTUS deals another blow to Biden’s agenda

The Supreme Court just took another swipe at the Biden administration’s regulatory authority, delivering a major win for multiple industries including oil and gas.

The court’s conservative majority vastly narrowed the reach of federal clean water protections, erasing protections for millions of acres of wetlands, write E.A. Crunden, Pamela King and Ariel Wittenberg. It also sent yet another signal of the justices’ skepticism toward federal regulations, which potentially
bodes ill for President Joe Biden’s other environmental and climate policies.

The decision will require the administration to rework a recent regulation that provided broad protections for wetlands, which trap and store carbon pollution, provide critical wildlife habitat, and soak up floodwaters, writes Annie Snider.

The ruling is a victory for homebuilders and fossil fuel companies, which need permits to build on or damage federally protected waters under the Clean Water Act. For decades, those industries and agricultural businesses have fought to limit the law’s reach.

Environmental groups decried the ruling, calling it a catastrophic loss for water protections that will imperil the nation’s wetlands...more

Supreme Court to Weigh Curbs on Clean Water Act, Pitting Property Rights Against Wetlands

 

The U.S. Supreme Court, heeding calls from business and property-rights groups, agreed to use a long-running Idaho fight to consider curbing the reach of the Clean Water Act.

The justices said they will hear an appeal from Chantell and Michael Sackett, an Idaho couple waging a 15-year-old battle to build a house on land that federal regulators say is protected wetlands. The Sacketts won a 2012 Supreme Court ruling that let their lawsuit go forward.

The Sacketts’ appeal asks the court to revisit a 2006 Clean Water Act case, Rapanos v. United States, which failed to produce a majority decision and left uncertainty about the governing standard. Four justices, led by Antonin Scalia, said the law covers wetlands only if they have a continuous surface connection to a river, lake or other major waterway.

A fifth, Justice Anthony Kennedy, created his own test, saying the Clean Water Act covers wetlands with a “significant nexus” to one of those larger bodies of water.  

In their appeal, the Sacketts say courts and regulators alike have struggled to figure out how the two standards intersect. The couple’s lawyers say the court should adopt Scalia’s test and clear up the confusion...MORE

Amid Historic Drought, a New Water War in the West

 KLAMATH FALLS, Ore. — Through the marshlands along the Oregon-California border, the federal government a century ago carved a whole new landscape, draining lakes and channeling rivers to build a farming economy that now supplies alfalfa for dairy cows and potatoes for Frito-Lay chips.

The drawdowns needed to cover the croplands and the impacts on local fish nearing extinction have long been a point of conflict at the Klamath Project, but this year’s historic drought has heightened the stakes, with salmon dying en masse and Oregon’s largest lake draining below critical thresholds for managing fish survival. Hoping to limit the carnage, federal officials have shut the gates that feed the project’s sprawling irrigation system, telling farmers the water that has flowed every year since 1907 will not be available.

Some farmers, furious about water rights and fearing financial ruin, are already organizing a resistance. “Tell Pharaoh let our water feed the Earth,” said a sign erected near the nearly dry irrigation canal that would usually be flowing with water from Upper Klamath Lake in southern Oregon.

The brewing battle over the century-old Klamath Project is an early window into the water shortfalls that are likely to spread across the West as a widespread drought, associated with a warming climate, parches watersheds throughout the region.

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Supreme Court hands environmentalists a win in water pollution case

The Supreme Court on Thursday sided with environmentalists by giving a broad reading to the types of water-borne pollution covered by the Clean Water Act. In a 6-3 decision, the justices held that a permit is required for either a direct discharge of pollutants into federally regulated rivers and oceans or its “functional equivalent.” “Suppose, for example, that a sewage treatment plant discharges polluted water into the ground where it mixes with groundwater, which, in turn, flows into a navigable river, or perhaps the ocean,” Justice Stephen Breyer wrote for the majority. “Must the plant’s owner seek an EPA permit before emitting the pollutant?” he continued, referring to the Environmental Protection Agency. “We conclude that [a permit is required] if the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters.” At issue in the case was whether Maui County in Hawaii violated the Clean Water Act, the landmark 1972 environmental law, by injecting wastewater underground without a permit that then seeped into the Pacific Ocean. In siding with environmental groups, Breyer was joined by his fellow liberal justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, as well as more conservative Justice Brett Kavanaugh and Chief Justice John Roberts. The decision returns the case, County of Maui, Hawaii v. Hawaii Wildlife Fund, to the 9th Circuit Court of Appeals to apply the new “functional equivalent” test. David Henkin, an attorney with Earthjustice who argued the case on behalf of environmental groups, celebrated the win. “This decision is a huge victory for clean water,” he said in a statement. “The Supreme Court has rejected the Trump administration’s effort to blow a big hole in the Clean Water Act’s protections for rivers, lakes, and oceans.” Justice Clarence Thomas wrote a dissent that was joined by Justice Neil Gorsuch, and Justice Samuel Alito wrote a separate dissenting opinion that accused the majority of going beyond the text of the Clean Water Act. "If the Court is going to devise its own legal rules, instead of interpreting those enacted by Congress, it might at least adopt rules that can be applied with a modicum of consistency,” Alito wrote. “Here, however, the Court makes up a rule that provides no clear guidance and invites arbitrary and inconsistent application.”...MORE

14 states sue EPA over rollback of Obama-era water rule

A coalition of 14 states sued the Environmental Protection Agency (EPA) on Friday over its rollback of a landmark Obama-era rule stipulating which waterways are regulated by the federal government. The Waters of the United States (WOTUS) rule expanded the scope of waters that farmers, manufacturers and other industries would need to ensure are in compliance with EPA guidelines. The Trump rollback of the rule, announced in September, would relegate waterway protections to 1986 standards. A proposal for the areas that would be covered under the rule is expected sometime next year. The coalition of states argue that returning the U.S. to the narrower 1986 standard ignores studies showing how small bodies of water, even seasonal ones following snowmelt, connect with and impact larger bodies of water more typically targeted for regulation. “This regressive rule ignores science and the law and strips our waters of basic protections under the Clean Water Act. Attorneys general across this nation will not stand by as the Trump Administration seeks to reverse decades of progress we’ve made in fighting water pollution,” New York Attorney General Letitia James, who spearheaded the suit, said in a statement. Critics of WOTUS argue that the 2015 rule requires grand efforts from farmers and others to protect relatively small bodies of water that run through their property, ultimately subjecting more land to federal oversight...MORE

AFBF: USDA Must End NRCS Abuses

Farmers and ranchers are being denied due process as part of an abuse of discretion by the Natural Resources Conservation Service, according to a scathing ruling by the Court of Appeals for the Seventh Circuit. The ruling is highlighted in a letter from the American Farm Bureau Federation calling on Agriculture Secretary Sonny Perdue to enact much-needed reforms in the agency. The letter focuses on the case of an Indiana farm owned by David and Rita Boucher, and Mrs. Boucher’s 17-year saga of unfair treatment at the hands of the NRCS staff. The Bouchers removed nine trees on 2.8 acres and NRCS, in turn, demanded they plant 300 trees per acre as compensation. The court found that NRCS wrongly accused the Bouchers of harming a non-existent wetland on their property but made no effort to correct the record even after the accusations were shown to be groundless. The NRCS judgment made the farm ineligible for a wide variety of government programs, creating a roadblock for the Bouchers to obtain the loans and crop insurance necessary to stay in operation. “The USDA repeatedly failed to follow applicable law and agency standards,” the court wrote. “It disregarded compelling evidence showing that the acreage in question never qualified as wetlands that could have been converted illegally into croplands. And the agency has kept shifting its explanations for treating the acreage as converted wetlands. The USDA’s treatment of the Bouchers’ acreage as converted wetlands easily qualifies as arbitrary, capricious, and an abuse of discretion.” The Bouchers are not the only victims of NRCS regulatory abuse, as noted in the letter and as previously conveyed to USDA by AFBF...MORE

The AFBF is requesting USDA:

• Retrain National Appeals Division judges and agency directors in how to provide a fair and balanced hearing;
• Require USDA to provide the entire record or decisional documentation to the farmers at the time of alleged compliance violation;
• Allow the farmer and his or her counsel to call NRCS technical staff as witnesses in the appeal;
• Accept evidence provided by the farmer as true, absent substantial evidence to the contrary; and
• Compensate the farmer for legal fees when the farmer wins an appeal – i.e., when the farmer is forced to incur costs as a result of an incorrect decision from NRCS.

The AFBF letter is here 
The court decision is here.

A Fight Between Humboldt Stakeholders Over the Klamath Dams is Impacting Environmental Protections Across the Country

 Ryan Burns

The past 15 years have seen a lot of complex negotiating, arguing and legal wrangling over the Klamath River Hydroelectric Project. For the most part these disputes have been limited to the fate of the four PacifiCorp-owned hydroelectric dams on that waterway. Not to minimize the stakes there: If the decommissioning goes through as planned (the latest timetable aims for a drawdown sometime in 2021) it will be the largest dam removal project in U.S. history, with major implications for environmental restoration, the salmon fishery, agriculture and local tribes. But a recent Federal Appeals Court decision is having repercussions that extend far beyond the Klamath River Basin. It’s the result of a legal fight between the Hoopa Valley Tribe and partners  in the landmark Klamath Basin Restoration Agreement (KBRA). Both sides in this dispute want the dams to come down, but they have long disagreed on the best methods to achieve that end. Hoopa wants to fight PacifiCorp; the others want to work with the dam owner. Hoopa says the recent court ruling did away with an illegal loophole that was allowing states to hold federal proceedings hostage for years on end. Opponents say the verdict has thrown a wrench into state and tribal efforts to protect the environment, and could have devastating repercussions across the country. The D.C. Circuit panel’s ruling, issued this past January and upheld under appeal in April, concerns the environmental oversight authority states have under the Clean Water Act.Critics of the decision, including California, Oregon and more than a dozen other states, plus major environmental groups and several tribes, believe it was deeply misguided. They argue that it not only threatens the prospect of dam removal on the Klamath but also strikes a blow to states’ environmental oversight authority on federally permitted dam and pipeline projects...MORE

Pair of Clean Water Act Decisions Creates Circuit Split over Discharges to Groundwater

On Monday, divided panels of the U.S. Court of Appeals for the Sixth Circuit issued a pair of decisions holding that Clean Water Act (“CWA”) Section 301’s prohibition on unpermitted discharges does not apply to pollutants that reach surface waters through groundwater.  In Kentucky Waterways Alliance v. Kentucky Utilities Co., No. 18-5115, and Tennessee Clean Water Network v. TVA, No. 17-6155, the Sixth Circuit became the third appellate court this year to decide whether discharges to surface waters through groundwater require National Pollution Discharge Elimination System (“NPDES”) permits.  Unlike the Fourth and Ninth Circuits, the Sixth Circuit rejected the theory that pollutants reaching navigable waters after passing through groundwater (or soil) are discharges that require NPDES permits...MORE

No offsets, no problem as Army Corps OKs wetland projects

The Army Corps of Engineers is greenlighting development in thousands of acres of Alaskan wetlands without requiring companies to offset resource damage, according to an E&E News analysis of five years of Clean Water Act permits. As the permitting agency for development in wetlands, the Army Corps is supposed to require "compensatory mitigation" — restoring or preserving wetlands and streams to offset damage done by projects. That changed in 2015 after Senate Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska) convinced officials in the Army Corps' Alaska District to relent on mitigation, helping mining and oil interests by lowering the cost of energy development. After the Murkowski meeting, the agency greenlighted more wetland projects without requiring mitigation. Even when developers themselves proposed mitigation for their projects, the Army Corps often refused. Now, the Army Corps is eschewing offsets as prospects for major developments are on the rise in pristine ecosystems — including the Bristol Bay watershed and the Arctic National Wildlife Refuge (ANWR), which Congress recently opened to oil and gas drilling. The policy shift at the Army Corps' Alaska District alarms officials at EPA and the Fish and Wildlife Service, but their power to intervene is limited...MORE

Leaked memo: Pruitt taking control of Clean Water Act determinations

Key provisions in the Clean Water Act are now under the control of one person at the US Environmental Protection Agency -- Administrator Scott Pruitt, according to a leaked memo obtained by CNN. In the new directive, Pruitt states he will make final critical decisions about preservation of streams, ponds and wetlands. Public Employees for Environmental Responsibility provided CNN with a copy of the memo dated March 30, 2018. In the memo calling for "regulatory certainty," Pruitt directed EPA regional offices to "cede their Clean Water Act determinations" to him, said Kyla Bennett, the New England director of Public Employees for Environmental Responsibility. The memo states: "With this revised delegation, authority previously delegated to regional administrators to make final determinations of geographic jurisdiction shall be retained by the Administrator. ... As part of effectuating this revision, I ask that you involve the Administrator's Office early on in the process of developing geographic determinations." The move appears to change the approval process to lessen the role of EPA employees and scientists when it comes to evaluating whether a project has a significant negative environmental impact on waterways or wetlands. The projects must receive permits from the Army Corps of Engineers and final approval from the EPA. Traditionally, regional EPA offices and career EPA scientists review the requests for permits to determine whether the project is detrimental to the local environment and the larger goal of waterway and wetland preservation...MORE 

What a bunch of outhouse soup.

The last time I looked, regional directors of EPA are political appointees. So this just moves the final decision from a regional political appointee to to the headquarters appointee. Career scientists and employees will still perform their functions and nothing is changed there. This breathless report by CNN is another example of how the environmental group-influenced media is going after Pruitt, even when there is nothing there.

Clarity for the Clean Water Act

By Bruce Berwick and Larry Liebesman

 The U.S. Supreme Court hears oral arguments Wednesday on proper federal court review of a dramatic overreach of federal environmental permitting. The issue in question involves the Environmental Protection Agency’s (EPA) 2015 decision to expand dramatically the regulatory definition of “waters of the U.S.” in the 1972 Clean Water Act. The EPA’s decision significantly expanded federal involvement over the geographic reach of environmental permitting and threw the federal permitting process into profound uncertainty. The EPA’s rule preparation took four years, but the response to its 2015 announcement was swift. Thirty-one states and multiple business groups filed or joined litigation to overturn the rule. In October 2015, the 6th U.S. Circuit Court of Appeals issued a nationwide stay on the new rule, meaning that it has not gone into effect. Most recently, the Trump administration has proposed to rescind the rule and intends to issue a much more restrictive rule in the future. The Supreme Court will consider whether the 6th Circuit even has jurisdiction to review the EPA’s rule based on rather arcane language in the Clean Water Act. A decision from the high court concluding that the 6th Circuit does not have jurisdiction could significantly complicate the Trump administration’s efforts to accelerate permitting for energy and infrastructure projects by reopening pending suits in a number of federal trial courts, possibly leading to inconsistent interpretations of Clean Water Act jurisdiction. There are many disturbing aspects of the EPA’s 2015 rule. An important point involves how the EPA was highly dismissive of expertise provided by the Army Corps of Engineers. In a series of memos drafted prior to the EPA’s 2015 announcement, the Corps went on record as disagreeing strongly with EPA’s interpretations, and even the EPA’s basic data, which the Corps did not have a chance to review and analyze...more

Settlement reached in federal case of Modesto-area farmer fined $2.8 million for plowing his field

Northern California farmer John Duarte spent years fighting the federal government after being fined for plowing over protected wetlands on his property. He attracted a nationwide army of conservative supporters who saw it as government overreach and hoped the Trump administration would order federal officials to back off. But just before his trial was set to start Tuesday, Duarte settled. Duarte became a cause célèbre among property-rights activists, farmers and other conservatives after running afoul of environmental laws in 2012. A judge ruled in 2016 that he violated the “Waters of the United States” provision of the Clean Water Act by “deep ripping” a Tehama County field without a permit. Duarte said he just planted winter wheat, as the previous property owners had done. But government officials said the field hadn’t been plowed in more than two decades, and he needed a permit before tearing up seasonal wetlands known as vernal pools that serve as habitat for plants and animals. Duarte and his allies, including the leader of the American Farm Bureau and Republican members of Congress, called it a classic case of government meddling with agriculture. The Trump administration already has moved to relax the WOTUS rules that the Obama administration had sought to expand, and the congressmen were pressing Attorney General Jeff Sessions to drop the case against Duarte altogether. Despite settling for far less than they were seeking, federal officials said the agreement shows the law must be obeyed...more 

The Pacific Legal Foundation released the following statement: 

  “Duarte Nursery, its president John Duarte, and Pacific Legal Foundation and their co-counsel announce that Duarte Nursery has agreed to a settlement with the United States in the federal government’s nearly five-year enforcement action over Duarte’s routine action of plowing its property to plant wheat in late 2012,” said PLF Senior Attorney Tony Francois, who represents Duarte free of charge.

“Under the agreement, Duarte would admit no liability, pay the government $330,000 in a civil penalty, purchase $770,000 worth of vernal pool mitigation credits, and perform additional work on the site of the plowing.

“This has been a difficult decision for me, my family, and the entire company, and we have come to it reluctantly,” said John Duarte. “But given the risks posed by further trial on the government’s request for up to $45 million in penalties, and the catastrophic impact that any significant fraction of that would have on our business, our hundreds of employees, our customers and suppliers, and all the members of my family, this was the best action I could take to protect those for whom I am responsible.”

“John would have preferred to see this case through to trial and appealed the court’s liability ruling, which holds that plowing a field requires federal permission — despite the clear text of the Clean Water Act and regulations to the contrary,” said Francois. “John and his counsel remain concerned that legal liability for farming without federal permission undermines the clear protections that the Clean Water Act affords to farming and poses a significant ongoing threat to farmers across the nation.”...

An interesting comment...

An interesting comment on my post Farmer Must Defend Plowing His Wheat Field 

I understand Duarte has decided to settle and I will post about that soon.

Anonymous said...

 I walked the neighboring parcels to the north of Duarte's in 2010, when looking to buy, and remember seeing cattle grazing on Duarte's.

First, this parcel and Duarte's were previously going to be covered by 3,500 homes - no CWA concerns over that.

The CWA exemptions include ranching and rotation of crops - forage for grazing is a crop - so being that Duarte's land was grazed since the last time a crop was grown
(1985, I think), it qualifies as an on-going farm use.

-- the neighboring parcel also has only been grazed for that same time period, timeline photos will show back as far as 1998.

-- the cattle owner also told me of the same farming history when I was there.

-- Also, Duarte plowed 4"-7" deep for wheat - if he deep-ripped, the seedlings would never see the light of day.

-- The neighboring parcel has way more vernal pools than Duarte's, yet was allowed to deep-rip without a permit.

-- the neighbor's deep-ripping is highly visible on Google Earth's 2013 photo (Paskenta Rd & Ohm Rd. & Rawson Ave., Red Bluff, CA).

-- also highly visible, is the much greater number of vernal pools of the neighbor's parcels, which show in 2015 & 2010 photos, compared to Duarte's to the south.

-- the neighbor's land is higher in elevation, (about 30 ft), than Duarte's, so any release of 'soil contaminants' are more likely to come from the deep-ripping of neighbor's land.

-- Neighbor also has a seasonal creek that was deep-ripped and goes from north of Ohm Rd., and joins Coyote Creek east of Duarte's parcel, then on through 11 miles of farmland to the Sacramento River - the neighbor's 'deep-ripped creek' can be seen in 2013 photo.

-- in contrast, there were no permits taken by the Rainbow family for the 18"-36" deep potty holes they dug at Malheur forest, nor were they fined for CWA violations, and with 13,00 attendees, they not taken the required permit for groups over 75.

-----and Malheur Nat, Forest has now declared it a health hazard area.

-- Duarte was told that the fifth amendment rights don't apply, unless the government waives impunity.

That would mean all constitutional rights are null and void, unless the government chooses to waive impunity - which it does only for the enviros by cowering down and handing them a check via the EAJA.

-- ironic that the EAJA, created to help individual citizens financially when fighting gov. overreach, has resulted in increased gov. overreach while financially ruining individual citizens.

Farmer Must Defend Plowing His Wheat Field

By Patrick Cavanaugh

John Duarte, a California farmer who gained national attention after the United States Army Corps of Engineers (USACE or Army Corps) sued him for plowing his Tehama County wheat field, will defend himself in a federal courthouse in Sacramento on Tuesday, August 15. “Agriculture is at a very dire crossroads right now,” said Duarte, imploring all farming stakeholders and food consumers across the country “to get loud with their Senators, Representatives and USACE. And if you know how to get ahold of President Trump, give him a call.” In February 2013, with no warning or opportunity to discuss the matter, USACE sent Duarte a cease and desist letter to suspend farming operations, claiming that he had illegally filled wetlands on his wheat field simply by plowing it. “I am being prosecuted for planting wheat in a wheat field during a global food crisis,” Duarte said. “They’re claiming I should have pulled a [Clean Water Act] permit that nobody has ever pulled and conducted practices that nobody has ever conducted to grow wheat.” Duarte who is also the owner of Duarte Nursery, argues that the Army Corps violated his constitutional right to due process. He said the agency came down on him hard and never gave him an opportunity to defend himself against the accusations before levying the fine. Duarte now faces $2.8 million in government fines. “The Army Corps of Engineers is prosecuting us,” Duarte said, “and the Army Corps does not even have subject matter jurisdiction to conduct this prosecution.” In a June 14, 2017, news release, Tony Francois, senior attorney for Pacific Legal Foundation, explained, “Prosecutors and bureaucrats are seeking to establish, for the first time, that farmers with seasonal puddles need a federal wetlands permit in order to plow their own private land—even though plowing is exempt from Clean Water Act (CWA) coverage.” Duarte believes if he were to lose the upcoming trial, it would change the way farmers in America farm. “This battle may never be resurrected in court. Taking this battle to the Supreme Court on several fronts is the only way to give farmers the long-term security they need, the right to farm and property rights protections, to deliver food security to America.”...more

Why farmers and ranchers think the EPA Clean Water Rule goes too far

Industry and agriculture groups believe the new rule defines tributaries more broadly. They see this change as unnecessary overreach that makes it difficult to know what is regulated on their lands. Western farms are laced with canals that provide critical irrigation water during the growing season. These canals and ditches divert water from streams and return the excess through a downstream return loop, which is fed by gravity. Because they are open and unlined, they also serve as water sources for wildlife, ecosystems and underground aquifers. And because they are connected to other water bodies, farmers fear they could be subject to federal regulation. The only way to surface-irrigate in western valleys without affecting local water systems would be to lay thousands of miles of pressurized pipes, like those that carry water in cities. This approach would be impractical in many situations and incredibly expensive. More generally, farmers and ranchers want to be able to make decisions about managing their land and water resources without ambiguity or time-consuming and expensive red tape. In spite of EPA assurances, they worry the Clean Water Rule could include agricultural ditches, canals and drainages in the definition of “tributary.” They fear EPA will use vague language in the rule to expand its power to regulate these features and change the way they are currently operated. They also fear becoming targets for citizen-initiated lawsuits, which are allowed under the Clean Water Act. Moreover, they are skeptical the outcomes will significantly benefit the environment...more

Trump plans to ditch Obama’s protection for small wetlands and waterways

On the campaign trail, President Trump promised to get rid of regulations, especially those designed to protect the environment. One of those regulations has to do with water. In fact very small bodies of water. It’s often referred to as the Waters of the U.S. Rule (WOTUS), or the clean water rule, and it’s the Obama administration’s attempt to define which isolated wetlands, or intermittent streams, are regulated under the Clean Water Act, passed in 1972. The Trump administration is expected to announce this week a reversal of the rule, which was challenged in court soon after it was enacted in 2015 and has since been blocked from enforcement. When Congress passed the Clean Water Act 25 years ago, it defined waters that would need some protection from pollution as “navigable.” For most of us that means big enough to float a boat. But when it comes to pollution sources, the need to provide clean water extends upstream of large river systems. “Everyone agrees it doesn’t strictly mean navigable anymore,” says Owen McDonough, with the National Association of Home Builders – one of the industry groups that opposes WOTUS. “We’re not talking about, for instance, things like the Susquehanna River, or Chesapeake Bay. But as you get farther and farther upstream, into headwaters of streams, that’s been a pretty difficult line to draw.”. McDonough says the gray area included intermittent or ephemeral streams, those that may not flow unless there’s a heavy rain, or isolated wetlands, or ponds. Those areas that are sometimes land, sometimes water. Over the years, Congress tried and failed to clarify the rule. Past administrations tried and failed as well. And the courts seemed to add to the confusion over what among these tiny waterways deserved protection from pollution discharge and run-off, and what didn’t...more

It would appear, based on this article any way, the difficulty and "confusion" in drawing the jurisdictional line began after everyone agreed navigable "doesn’t strictly mean navigable anymore.”

What an interesting concept. Would this apply to other words in other statutes? If everyone agrees a word or phrase no longer means what it says then the original intent of Congress can be changed without amending the statute? And just when did this agreement about the meaning of navigable occur?  The Constitution says that all legislative powers are vested in Congress. Is that no longer the case?

Whenever I encounter this "words no longer mean what the say" phenomenon,its always in the context of expanding the powers of government.  It seems to never occur when it comes to limiting those powers.

George Leef writes:

When Congress passed the Clean Water Act in 1972, it was exercising its power to regulate interstate commerce by prohibiting discharges into the nation’s “navigable waters.” If a body of water could be used to transport goods from one state to another, it was covered by the Act.

Like so many other statutes enacted over the last 80 years – that is, since the advent of the administrative state under FDR – the Clean Water Act (CWA) depends on bureaucratic interpretation and enforcement.

The two entities involved with the CWA are the Environmental Protection Agency and the Army Corps of Engineers. Both have tried to expand the scope of their regulatory power by issuing rules that defined “navigable waters” so broadly that they have (or at least claim to have) authority over many bodies of water that couldn’t possibly be used to transport so much as a paper clip between states.

Twice, the Supreme Court has slapped down rules that amounted to a rewriting of the law to suit the zealous regulators.

First, in Solid Waste Agency of Northern Cook County v. Army Corps of Engineers (2001), the Court ruled that the Army Corps had no authority to assert control over isolated bodies of water – in that particular instance, an abandoned sand and gravel pit.

You might think that the lesson would have sunk in, but in 2006 the Court had to deal again with another creative interpretation of the CWA in Rapanos v. United States. The EPA had asserted that it could prevent a landowner from doing anything with a wetland that was near a ditch that eventually drained into navigable water. The Court again ruled that the agency had overstepped its bounds.

And here we go again, with a new definition that would include, "...virtually any wet spot – or occasionally wet spot – in the country, including ditches, drains, seasonal puddle-like depressions, intermittent streams, ponds, impoundments, prairie potholes, and large ‘buffer areas’ of land adjacent to every waterway.” When will Congress act to resolve this situation? If they don't, we'll all continue to be the victims of this bureaucratic battle to limit our property rights and other freedoms.

How a 1995 firearms case led to Clean Water Act muddle

by Amanda Reilly, E&E reporter

Court rulings in Clean Water Act cases largely gave federal agencies broad regulatory authority until an unrelated 1995 Supreme Court decision on the possession of firearms in school zones, according to Congress' research arm. In United States v. Lopez, the high court struck down a federal statute for the first time in more than 50 years on the grounds that it exceeded the powers given to Congress by the Commerce Clause. "Lopez set the backdrop" for future rulings limiting federal Clean Water Act jurisdiction, the Congressional Research Service said in a report released Monday. Ever since, CRS said, the scope of the Clean Water Act has been a battleground for farmers, industry, environmentalists and regulators. At issue is the phrase "navigable waters of the United States," which Congress added in 1972 Clean Water Act amendments to determine the reach of permitting requirements (Greenwire, Dec. 24, 2015). Legal and political brawls continue to be fought over how that phrase should be applied under the Commerce Clause, which gives Congress the power to regulate commerce with foreign nations and between states.

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EPA, Army Corps of Engineers Violate Law, Oppress Farmers in California and Elsewhere, Farm Bureau Tells Congress

    WASHINGTON, D.C., May 24, 2016 - The Environmental Protection Agency and Army Corps of Engineers have violated their own regulations and effectively invented new ones in enforcing the Clean Water Act, the American Farm Bureau Federation said today.
    Don Parrish, senior director of congressional relations at AFBF, told the Senate Subcommittee on Fisheries, Water and Wildlife that the Army Corps' novel interpretations of environmental law are threatening the very livelihoods of ordinary, middle-class Americans who happen to farm for a living.
    "Based on what we see in California, it is clear that the expansions in jurisdiction over land and water features on the farm are already happening," Parrish told the subcommittee. "Most ordinary farming activities conducted in areas under jurisdiction will require permits if and when the Corps chooses to demand them. And when they demand permits, delays and costs will mount until most farmers simply give up. Congress needs to step in and give farmers some real certainty so they can plan their farming operations and protect the environment at the same time."
    Parrish's testimony also included a detailed analysis of recent Army Corps actions by Jody Gallaway, an environmental scientist and California Farm Bureau member who has consulted on numerous discussions between local farmers and the Corps. The Army Corps interprets and executes environmental regulations that are largely determined by the EPA.
    Parrish cited numerous examples of EPA and Army Corps mismanagement:

• The Corps has made jurisdictional determinations and tracked farming activities based on classified aerial photographs and LIDAR imagery that is not publicly available, even to farmers under investigation
• Army Corps officials have forced farmers to sign non-disclosure agreements - gag orders, in effect - as part of their enforcement actions.
• One California farmer invested tens of thousands of dollars to map his private property to ensure his farming activity would avoid polluting local watersheds. The Corps, in response, threatened enforcement proceedings over construction of roads and ponds completed years before the farmer owned the property.
• In the Army Corps' Sacramento district, any plowing through a wetland requires permits that typically cost hundreds of thousands of dollars in engineering fees, even though the Clean Water Act exempts plowing from permitting.
• The Army Corps has issued menacing letters to farmers who have changed from alfalfa hay farming to cattle grazing and back, despite the absence of any law to support their objections.
• The Corps has told farmers to stop working when it merely suspected they were plowing too deep or changing land use. The Corps' selective enforcement of this interpretation means it can now tell farmers where they may and may not farm, and what they may grow.
• The five-year drought has forced many farmers to temporarily fallow land or change crops based on changes in irrigation and market conditions. Oblivious to such obvious economic distress, the Corps has repeatedly required permits for ordinary plowing necessary to prepare the ground to change crops, further compounding the economic dislocation farmers have felt in the Central Valley.

    Parrish's testimony can be found here: http://www.fb.org/assets/news/DonParrishBioAttachmentTestimony.pdf
    Editor's note: Jody Gallaway is the name of the California Farm Bureau member who prepared the analysis cited in Parrish's testimony.

Press Release

SCOTUS hears first big environmental case without Scalia

By Eric Wolff

The Supreme Court hears arguments this morning in the first major environmental case to come before justices since the death of Antonin Scalia last month. The case, U.S. Army Corps of Engineers v. Hawkes Co., Inc., deals with whether landowners can go to court to appeal jurisdictional determinations made by the Corps about which streams and wetlands on a property are subject to Clean Water Act protections. Those protections can carry steep economic consequences for industries ranging from oil and gas to farming to homebuilding.

Hawkes Co., a peat-mining enterprise based in North Dakota, is represented by the Pacific Legal Foundation, whose attorneys won a unanimous ruling from the high court in a 2012 wetlands case making EPA compliance orders judicially reviewable. The foundation’s attorneys argue the Hawkes case is simply an extension of the justices’ decisive ruling four years ago, and they have been expecting a big win even without Scalia. But the government argues the determinations are merely a courtesy, not even mentioned in the Clean Water Act, and aren’t a final agency action eligible for judicial review. Moreover, the government notes in briefs, the corps issues tens of thousands of permits each year — enough to clog the courts if applicants seek reviews.

Early hints on WOTUS? The jurisdictional determination made in the Hawkes case came long before the Obama administration’s controversial Waters of the U.S. rule, but WOTUS will almost certainly come up in oral arguments. Industry groups and property rights activists argue the new rule defining which creeks, bogs and marshes merit federal protection makes the Hawkes case all the more critical. “It does make our case more important because if the government is going to try to expand its authority, as it is clearly trying to do under this new rule, landowners need to have the right to go to court to challenge that overreach,” said Mark Miller, one of the PLF attorneys on the case.

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EPA Official Behind Pebble Mine Defeat Fled The Country Amid Congressional Probe

by Michael Bastasch

A government ecologist was instrumental in the Environmental Protection Agency’s blocking of a major Alaska gold mine left the U.S. after congressional investigators found out he flouted federal records law.

A report published by Republicans on the House science committee found that Phil North, an EPA ecologist, came up with the plan to use the Clean Water Act to block the Pebble Mine from ever being built in Alaska’s Bristol Bay. North convinced the EPA to use an “unprecedented” method for shutting down the mining project, according to the report.

House science committee staff found out about North’s involvement in Pebble from a 2013 news article. The committee quickly sent a request to EPA “to request North’s relevant documents and communications.” The committee also wanted North to come in for a transcribed interview, but North was less than compliant.

...“North then left the country and avoided service by the U.S. Marshals Service of a subpoena to be deposed by the Committee,” the House committee wrote. “According to press reports, North was most recently in Australia.”

...Republicans also shows how EPA employees, including North, convinced Alaskan tribes in the region to write a letter to the agency asking them to preemptively veto Pebble — something the EPA had never done before. The whole “grassroots” push against the mine was orchestrated by EPA and its allies, according to the report.

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 A great example of "collaboration".