Obama Administration and EPA Use Clean Water Act for New Overreach

Just as the Environmental Protection Agency (EPA) has used the Clean Air Act to broaden the scope of their authority way beyond its original intention with rules like MACT and CSAPR, the Clean Water Act is becoming a tool of overreach by the out of control agency.


Barack Obama and the EPA’s Lisa Jackson have made it clear through their actions that they will circumvent the legislature by using regulatory enforcement to enact Obama’s green dreams, and now it seems that circumvention includes the Supreme Court of the United States.

During the Bush presidency, a series of Supreme Court decisions acknowledged the limits of reach for the Clean Water Act. Most notably, the Supreme Court clarified that federal jurisdiction did not extend to wetlands and other “waters of the United States” under the Clean Water Act.  Through the Solid Waste Agency of Northern Cook Country v. U.S. Army Corps of Engineers (2001) and Raponos v. U.S. (2006) the Supreme Court established that private property rights still mattered even in light of the Clean Water Act and that the federal government did not have authority over them.

This of course isn’t stopping Barack Obama and Lisa Jackson from moving forward anyway.

It’s important to remember the original purpose of the Clean Water Act (1972).  It gives the federal government and the EPA the authority to regulate “navigable waterways.”  In other words, not a ditch out front with a lot of water in it and certainly not acres upon acres of private or state owned wetlands.  Yet, regulating these types of waters is precisely what the EPA is in the midst of doing.


The Army Corps (pronounced core) of Engineers and the EPA are in the process of finalizing “Draft Guidance on Identifying Waters Protected by the Clean Water Act,” which is a fancy way of saying “we’re going to go out and change the definition of certain bodies of water so that we can pretend they fall within the Supreme Court’s definitions.”

The Barrasso-Heller Amendment, introduced by Sen. John Barrasso (R-WY) and Sen. Dean Heller (R-NV), was created to prevent the Army Corps of Engineers and the EPA from incorporating those Obama changes into the regulatory guidelines, which serves the purpose of distinguishing precisely what the Supreme Court had already covered when it established the clear limitations of the Act.

The Property Rights Alliance and the American Farm Bureau Federation support the amendment, although its been met with predictable opposition from the left who have branded the amendment a “destructive measure.” One such bit of opposition is coming from the editorial page of the New York Times who incredibly claims that upholding the Supreme Courts decisions on the limitations of the Clean Water Act is somehow a “subversion” of its mandate.

Republicans just won’t give up on their misguided attempts to subvert the Clean Water Act. Senators John Barrasso of Wyoming and Dean Heller of Nevada plan to offer a rider denying protections to one-fifth of the nation’s wetlands and as many as two million miles of small streams. The House has approved a similarly destructive measure, so it is crucial that the Senate majority leader, Harry Reid, and his Democratic colleagues block this legislation.


In April, the Obama administration proposed new guidelines restoring inclusive protections and promised to codify them in permanent regulations. This infuriated home builders and anyone else with an interest in filling in streams and wetlands. The House then voted to prohibit the Environmental Protection Agency and the Army Corps of Engineers from carrying out the new guidance. The Senate bill would permanently prevent action to clarify the law. As always, the legislators driving these campaigns say their goal is to remove regulatory barriers to job creation. But the real issue is whether the country gets the clean water it wants and needs.


Of course. Believing that certain waters should either be at the discretion of the property owner or (gasp!) the state is exactly equivalent to wanting all Americans to drown in dirty water. Because let’s face it: without interference by the federal government, there’s no chance that we as mindless citizens could figure it out on our own.

Want to see how the EPA can use this type of authority to mess with law-abiding, tax-paying citizens?

Four years ago the Sacketts were filling in their lot with dirt and rock, preparing to build a simple three-bedroom home in a neighborhood where other houses have stood for years. Then three federal officials showed up and demanded they stop construction. The agency claimed the .63-acre lot was a wetland, protected under the Clean Water Act.

The Sacketts say they were stunned. The owners of an excavation company, they had secured all the necessary local permits. And Chantell Sackett says that before work began, she drove two hours to Coeur d’Alene, Idaho, to consult with an Army Corps of Engineers official. She says the official told her orally, though not in writing, that she didn’t need a federal permit. “We did all the right things,” she says.

The EPA issued an order requiring the Sacketts to put the land back the way it was, removing the piles of fill material and replanting the vegetation they had cleared away. The property was to be fenced off and the Sacketts would be required to submit annual reports about its condition to the EPA. The agency threatened to fine them up to $32,500 a day until they complied.


But this is about clean water, not federal land grabs, right?  Tell that to the Sacketts.

Lost in all of this is the fact that, since the introduction of the Clean Water Act (which yes, was needed at the time), our drinking water is remarkably clean. Consider how important it is that when visiting 3rd world countries (or most infamously, Mexico) that you don’t even drink the water there because an American’s body is il-prepared for the ravages of dirty water. Our water is so clean, we can’t even drink dirty water anymore or we’ll die! That’s saying something.

Yet, the government thinks it’s not good enough. And it won’t be until they have control over all water in America.

A few years ago, President Obama scolded the Supreme Court in front of the world during his State of the Union Address. I suppose it’s not shocking that he has such little respect for the division of powers in our government that he’d use the regulatory to trump the two out of three of them.



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