[Corrigendum coming soon~cr]
Brief Note by Kip Hansen — 31 August 2023
The United States’ Environmental Protection Agency [EPA] and the U.S. Army Corps of Engineers should have finally relinquished their claim made under the Waters of the United States (WOTUS) rules claiming jurisdiction over “any low spot where water collects, including farm irrigation ditches and fields, ephemeral drainages, livestock watering ponds on private and public lands, as well as isolated wetlands.“ Former EPA administrator Scott Pruitt recently commented: “When you define waters of the United States to include dry creek beds, drainage ditches and puddles — and that is not really an editorial comment — that impacts literally how you use your land all over the country.” [definition from source ]
This has been a long and controversial legal battle which finally culminated with the decision of the U.S. Supreme Court in May 2023 in the case known as Sackett v. Environmental Protection Agency, No. 21-454 [.pdf ].
The Court found [the shortest possible rendition – kh ]: “In sum, we hold that the CWA [Clean Water Act] extends to only those “wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right,” so that they are “indistinguishable” from those waters. ….. This holding compels reversal here. The wetlands on the Sacketts’ property are distinguishable from any possibly covered waters.”
For those not familiar with the case, The Hill gives an overview version here.
The EPA has issued a new rule [.pdf] that they insist complies with the Supreme Court ruling. The new rule document is 141 pages long, consists of mostly re-arguing the case just decided by the Supreme Court, repeatedly demands that the “significant nexus” standard is not only allowed under the CWA but absolutely necessary. For the life of me, I can see no difference between the new rule and the old. The new rule still contains the phrase “significant nexus” 484 times.
This is what the Supreme Court decision in Sackett v. EPA says about the “significant nexus” standard:
“The EPA, however, offers only a passing attempt to square its interpretation with the text of §1362(7), and its “significant nexus” theory is particularly implausible.
And, in any event, the CWA never mentions the “significant nexus” test, so the EPA has no statutory basis to impose it. See Rapanos, 547 U. S., at 755–756 (plurality opinion).
Yet the meaning of “waters of the United States” under the EPA’s interpretation remains “hopelessly indeterminate.”
The EPA contends that the only thing preventing it from interpreting “waters of the United States” to “conceivably cover literally every body of water in the country” is the significant-nexus test.”
Rather than ensuring that the new rule use the definition called for by the Supreme Court — the CWA [Clean Water Act] extends to only those “wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right,” so that they are “indistinguishable” from those waters — the EPA and the US Army Corps of Engineers have promulgated a “new rule” that is essentially the same as the old rule and does not even come close to complying with the ruling of the Supreme Court.
The most recent NY Times article states explicitly that “The new E.P.A. rule removes the “significant nexus” test from consideration when identifying tributaries and other waters as federally protected.” This is categorically incorrect. The new rule [.pdf] on page 63 of the pdf file which is page 3066 of Federal Register / Vol. 88, No. 11, states in the inclusion section:
“The ‘‘waters of the United States’’ are defined …. (a)(2) impoundments or jurisdictional tributaries when the wetlands meet the significant nexus standard (‘‘jurisdictional adjacent wetlands’’); and (5) intrastate lakes and ponds, streams, or wetlands not identified in paragraphs (a)(1) through (4) that meet either the relatively permanent standard or the significant nexus standard.”
Environmental advocacy groups lamented the Supreme Court finding and have publicly stated they are displeased with the new rule, often claiming the supreme Court has “gutted” the Clean Water act.
The NY Times’ Lisa Friedman and Coral Davenport make this statement:
“The developers and farmers as well as gas, oil and coal companies that applauded the Supreme Court ruling said they were not satisfied with the way the E.P.A. relaxed its regulation. They argue that the new E.P.A. rule is confusing and does not comply with the Supreme Court’s direction. The National Mining Association said the regulation “misses the mark.””
Add my name to that list – The EPA and Corps of Engineers have trivially complied to the Court’s decision that they re-write the WOTUS rule – but that is seems to be all they did, they re-wrote it, without making any significant changes, particularly failing to rescind the offending significant nexus standard and failing to include the standard insisted upon by the Court: That the CWA jurisdiction applies “only those “wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right,” so that they are “indistinguishable” from those waters”.
Bottom Line:
1. The EPA and Corps of Engineers have failed to comply with the Court ruling and instead have simply re-worded the offending rule.
2. This means that there will have to be further hugely expensive battles starting at Step 0 in the lower courts, fought all the way up again to the Supreme Court. The ruling will be the same if the membership of the court remains the same or if a newly comprised Court relies on precedent.
3. The un-elected bureaucracy of federal agencies has side-stepped the checks and balances built into the US Constitution to stubbornly hold onto assumed powers to which it has no right – and blatantly challenged the authority of the Supreme Court.
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Author’s Comment:
The controversy over the WOTUS rule has been churning the courts for decades. Every time a court ruled against the agency’s overreach, EPA has pulled this same delaying tactic – rewrite the rules in an insignificant manner, accept comments but fail to act on them, and then approve their own new-but-not-different rule which they then enforce while acting as police, judge and jury.
I have no idea what remedy there is to this situation. Any legal scholars reading here? If so, give us your opinion.
All I know is: It ain’t right.
We all want clean water. We all oppose industry and bad actors dumping poisons and trash into our rivers and streams. The EPA, when it was first established, did good work to make things better for all of us.
Opinion: But having accomplished the easy part, cleaning up obvious abuses, they failed to settle for maintaining a good level of environmental standards, instead the agency has grabbed more and more power claiming jurisdiction over common everyday activities that U.S. citizens believe they have every right to carry out without Federal interference.
Thanks for reading.
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The Democratic Party has a long history of not complying with Supreme Court decisions that upset their current coalition. From Brown v Board of Education to NYSRPA v Bruen, sullen noncompliance has been their normal reaction.
Democrat, not Democratic, there is a difference.
I always thought it was DemoRat
Read my lips: DemonRat… best fiends with the C*ntslurpatives.
Thank you. Avoid confusion and just refer to Democrats as ‘progressives’, ‘socialists’, or simply, ‘the left’. Also note that it is incorrect to refer to Democrats, or allow them to refer to themselves, as ‘liberals’, since coercion, not liberty is the common denominator of all of their policies.
“Socialists” is the best descriptor in my opinion.
They are certainly not progressives since they lead us away from progress toward a dystopia. Don’t grant them that name any more than the name liberal. As you rightly pointed out, they oppose liberty.
Leftists is an understandable label, but still problematic. The ‘left-right’ idea is intentionally misleading. Politicians like Hillary Clinton and Resident Brandon are in fact fascists but fascists are usually classified (by the communists in academia) as “far right”. Now of course they don’t have their fascist friends in mind. They use the rule that fascism is whatever bad thing you hate.
Fascists are adherents however of a variant of socialism. Italian fascism was founded by a socialist and the German fascist party was the National Socialist German Workers Party better known as the Nazis. They are not further right than conservatives, they are cosmetically to the right of communists.
Fascism retains a modified concept of property and the appearance of a market economy. Their unfree market is an illusion because market forces are so thoroughly distorted by government meddling. Property is secure only for the elites who do not fall out of favor. It is earned not primarily by labor and industry, but by gaming government programs, subsidy mining, crony capitalism.
Fascists are like viruses that take control of a cell to reproduce. They use zombie businesses as a part of the government control apparatus, ultimately for the benefit of the elite and the destruction of liberty. The Clinton Foundation and The Big Guy ™ are examples of how fascist elites profit from the system.
So let’s refer to them as socialists or if the name fits, the more specific variants “fascists” and “communists”. We don’t see many communists any more. Most of the socialists are fascists.
Socialists should be called out for what they really are, communists. They are related through ideological incest. Socialism is merely a sugar coated term to hide their true agenda. Unchecked socialism ALWAYS leads to communism. Communism, in turn, always eventually fails, usually after economic collapse and large numbers of fatalities. Socialism=communism, or lipstick on a pig. Both should be opposed by any means necessary.
DFJ150,
I agree of course that communism is an extreme form of socialism, but I disagree strongly with the statement that socialism always leads to communism.
As I argue above, most socialists in power today are fascists. The CCP are clearly fascists for example. And contrary to your claim, the Chinese came about as close as anybody to communism before switching to fascist socialism.
So I would actually argue that socialism always leads to fascism, even if it sets out aiming for communism. Even if it makes it pretty far down the road to communism.
The big lie that the socialists tell is that fascism is the opposite of communism. The main reasons they do that are 1) that the National Socialists turned on the Soviets; and 2) no socialist wanted to be held accountable for the crimes committed by the Nazis.
demon-crat
I prefer “demonrats”
Demonic rats
Also you can always say “oops typo! Somehow the c got replaced by an n”
A rogue EPA needs to be abolished.
The concept of a special prosecutor on the environment is another thing to hold against Richard Nixon.
Defund DC
The matter of “waters of the United States” and how they are defined as “navigable waters” is hardly a trivial matter to be gotten around by ignoring the SCOTUS decision in Sackett. The entire Constitutional basis of Federal regulation of waters of the United States is predicated upon the commerce clause. The commerce clause requires that any matter affecting interstate (as opposed to intrastate) commerce is preempted by the Congress. That waters must be navigable is what triggers the commerce clause. There is zero affect on interstate commerce in matters of isolated wetlands that are not navigable and do not contribute to navigability of waterways.
SCOTUS finally took the sane position that navigability being controlled by isolated wetlands is ridiculous.
EPA cannot win. That appeals against the draft rule because it defies the Sackett decision are necessary is par for the course, entirely to be expected. This is the cost of freedom, and freedom is never free.
I would have liked the Supreme Court rein in the “navigable waters” to actually cover waters upon which commercial watercraft actually operate for interstate commerce. Just because a guide service rows a boat in a small lake in the Wind River range does not mean that it is a navigable water of the USA due to the commerce clause. It has to be a commercial business that crosses a state line.
If the lake has no navigable stream outlet and is situated entirely within a single state then it is not “waters of the United States” and thus subject to Federal regulation.
On the other hand if a stream is navigable by a rowboat or canoe and crosses a state border, or discharges into another body of water that crosses a state line – a river or a lake – then it is WOTUS.
At the time the US Constitution was ratified in 1787 there were no power boats, and a great deal of interstate commerce was indeed carried out in rowboats, canoes, keelboats, etc. The Constitution does not require state regulation of WOTUS that are actually used in commerce be preempted … only that they could be, hence the Federal laws that define WOTUS as “navigable”, not “are being navigated”.
Of course states are free to regulate wetlands, even going beyond Federal wetland standards, which some states do. Florida, for instance, defines regulated wetlands as lands that might be only occasionally inundated by surface water, or which merely contain soils that appear to have been inundated at some point in the past.
WOTUS should be simplified as
Naturally occurring permanent flowing waterways and lakes plus human created reservoirs fed by or draining into naturally occurring flowing waterways.
This would take livestock ponds and puddles out of the equation
Should probably include human created waterways intended to supply potable water
The rein of the Administrative State needs to be terminated… With extreme prejudice… 🤬
Sounds good in theory, but no government or society can function without an administrative state. That is what is called “anarchy”. With no administrative state there can be no military defense, public roads or water supply or law enforcement or really anything you take for granted in 21st century life all over the world. Life would be dog eat dog.
The issue is not either-or, or to have an administrative state or not have one … but rather the issue is what limits and oversight should be placed upon the administrative state to make it accountable to the People.
We got along quite well without and administrative state until FDR. Rule and regulations should not exist. Executive orders should be limited to government. Laws passed by congress and approved by the president and court should be the only hold the government has on the people. There. Problem solved.
1887 interstate commerce act was passed to regulate railroads, by means of the interstate commerce commission.
You just don’t know your history and repeat nonsense said elsewhere
The EPA shouldn’t extend to transitional water bodies as the Supreme court said, for the actual Becker property they were unanimous that EPA had no jurisdiction.
Trump has had his officials defy the courts too
https://www.latimes.com/politics/story/2020-07-16/trump-refuses-new-daca-supreme-court
Regulate an area of the economy passed by congress is one thing though I don’t completely agree with that. The EPA was never authorized to control carbon dioxide or all standing water but it gave its self the power to do so. A true administrative state is when the president and a division of the government completely take away the oversight power of congress.
As for Trump, he is a flawed personality who just happened to be better than the alternative. I am a Constitutional Conservative which means I disagree with much of the power government has taken from the people. That isn’t what the founders wanted nor is it what I want.
Still required to *regulate* the waters of the US. They went too far
Im sure the ICC has been reined in sometimes too
Not sure why comparing that to Clean Air Act
Still my point was government regulation has existed well before FDR – but there some who want
No – we have had an administrative state forever, including the British and Spanish colonies prior to American independence and later establishment of our Constitutional government. Again, absent some form of administrative state, there is only anarchy.
Duane ==> Yes, exactly right. The ex-British Caribbean island nations function far better than the ex-Spanish and ex-French island nations. (ex-French a bit better than the ex-Spanish).
That’s why I wrote: “The rein of the Administrative State needs to be terminated… With extreme prejudice…”
Almost every Federal bureaucracy needs to be torn down and rebuilt from the ground up.
Spelling error:reign, not the homophone rain
The infamous “you are posting comments too quickly” bug will not let me edit. reign, not rain or rein
David ==> The out-of-control federal agencies in the U.S. and the similar creatures in the EU need to be reined in,not terminated.
In less-developed countries, it is the agencies that keep the country running while the heads of government and the legislatures come and go, sometimes every year. Lack of solid, continuously functioning dependable bureaucracies in these countries cause anarchy and the inability of businesses (especially foreign business so important to their economies) to operate.
My wife and I married in Jamaica because it had long-term, operating British-style governmental bureaucracies that kept records that other nations would accept.
Environmental topics are the dream issue for politicians to expand the items they can dictate to the populace. It’s part of the aphrodisiac of power, desire to do good with other people’s money, expand their departments, increase the tax take, the list goes on and on…
The answer is simple: Abolish and defund the EPA.
No can do. Federal environmental laws must be governed by rules, and the rules must be enforced, which requires a rule writing and enforcement agency, whether it is called “EPA” or something else. A Federal agency is necessary for adjudication of interstate regulation.
You assume a need for federal regulation that needs to be adjudicated.
Turn everything back over to the states where it belongs.
That train literally left the station in 1887 when interstate railroads were regulated …..see regulations written and enforced by an federal agency
Actually that train left the station when the former government under the Articles of Confederation utterly failed, resulting in the Constitutional Convention of 1787 which was designed to prevent the failure of a weak Federal government, unable to settle disputes amongst the states.
States cannot regulate interstate matters. Again, that is why the commerce clause was put into the Constitution. That was a huge matter of debate at the time of the Constitutional Convention, and was settled by adopting the commerce clause. The former Federal government under the Articles of Confederation proved to not work at all, because disputes between the states were constant and effectively prevented any kind of national government, which was the only protection against enslavement by the European powers.
True for regulations. Turn them over to the States. Not true for those powers assigned by the Constitution to the Federal Gov including US military, the Post Office, international trade and treaties.
Of course, right now we have rogue states making treaties with foreign countries (especially China), and the Federal Government not protecting our borders.
But like Philip said: defund and abolish the EPA. Start over, and this time be more careful with its creation.
That fact that the EPA is basically pretending to rewrite the rules when the Supreme Court ruled against them, and even keeping the same offending language – any sane crook would have at least reworded the phrase significant nexus, but they have the balls to just basically shift the words around and pretend it’s a whole new rule, forcing the plaintiffs to sue all over again.
That’s infuriating! You win a case against a law/rule and it’s struck down, and they just go and make a new one same as the old one. Rinse and repeat, until the plaintiffs run out of money.
Viva le independent judiciary!!!
A question, if the court demands you do something, say, write an essay on sweetpeas, surely the process must exist whereby the court has to agree the task is complete? Did the EPA not have to submit their punishment as it is, to scrutiny of said punisher?
Vive le Independent Judiciary, the biggest joke Democracy ever pulled on us.
If government entities refuse to comply with judicial rulings, especially those that end up adjudicated by SCOTUS, the means is for a person or group with standing (such as any one of the states, or an interest group) to sue again, at which point if SCOTUS determines that the government is willfully disobeying the ruling, the court will prescribe detailed actions to force compliance with detailed reporting back to the court as to its implementation.
That is a rather awkward means of complying – far better for the agency to simply comply. The best way to do that is to elect an administration that will change the direction of the agency. Also, Congress can intervene too, but that is difficult because of the 60 vote majority needed to pass legislation in the Senate – though that requirement can always be changed, as it was changed for confirmation of Federal judges and justices.
After waves of ecology students hired by managers from the previous wave of ecology students. Changing the organization… like searching for puppies with five thumbs? Where will these better thinkers come from, and who will teach them day-to-day tasks?
Okay, so the system is designed to make sure the lawyers never run out of work,and sod actual application of law?
Goddit!
Now I understand why Teacher lodged an appeal with the school board every time I did not do my homework…
Nope – that will never happen, and it should never happen. The answer is to elect Presidents who properly nominate and supervise leaders who will restrain the EPA’s overreach. That’s how our government works, how it has always worked. If the people elect the wrong leaders, the result is bad government, and vice versa. In the end, it is us, We the People, who are responsible for our Constitutional republic’s behavior. We get leaders only as good as we elect.
That’s assuming honest elections!
Sounds the same as 2019’s defund the police movement. All sounds great until my next door neighbor opens a surface mining operation.
Tyrants never give up power willingly.
They never stop trying to grab more power, either.
Trump is under indictment for not giving up power by various conspiracies to subvert the law
Trump officials also subverted the Supreme court’s rulings on the DACA immigration process
“Immediately after the court ruled, Trump and his officials rejected the decision as “politically charged.”
Surely you remember that or do you live in a fantasy world where he does no wrong
“Trump is under indictment for not giving up power”
Trump turned over the government to Biden. Didn’t you notice?
Thats funny , sooooo funny
-By various conspiracies to subvert the law- just because he was hopeless at that doesnt mean he was law abiding.
Had to be forcefully prevented from *authorising* armed forces to seize voting machines in a few states
That one single statement unmasks you as a Bolshevik agent hell-bent on destroying civilisation.
This whole mess could cleared up,and you libtard communists can prove your superiority for once and for all, if you just allow inspection of those machines, but no, you will throw around the stupidest, vilest, most idiotic libel and blasphemy to prevent anyone looking into the programming, yeah?
What you should worry about, is who is so powerful, with so much clout, they could prevent the army from inspecting obviously fraudulent voter machines. I’ll give you a hint: The first electronic vote machine was installed way back when a congressman Rothschild got elected from the blue. Google seems to have forgotten the exact details and I reallocated that memory space long ago.
“Thats funny , sooooo funny”
The truth is funny?
I think you are going to be so disappointed in the near future.
With today’s administration in the USA neither the Constitution nor the SCOTUS seem to have any power.
A lawless adminstration can ignore the U.S. Constitution and the Supreme Court but that doesn’t mean the U.S. Constituion and the Supreme Court do not have any power.
The lawless administration will not have the final word.
What the Left relies upon when it defies SCOTUS is the knowledge that the process of US judicial review is about as responsive as the steering system on the Titanic – the ship eventually maneuvers, but not until considerable damage has occurred.
The short-term remedy is for any red-state AG worth his or her salt to immediately nullify any attempt by the EPA to implement the subject directives. Long-term, the identity of every EPA employee that played a role in the non-compliant re-writing of the regulation needs to be noted, from policy makers down to the people who run the copy machines, so that they may be summarily fired by the next competent Administration for their blatant implementation of an unconstitutional law.
I wish that was possible, but civil service laws mean the president can only fire the top 2 or 3 layers of any federal department.
Yes, but that’s where the problem is. The lower levels don’t make up the insane policies they are forced to carry out. It’s the Exec levels that get Visions, and nobody has the courage to tell the bosses they’re naked and full of shit.
Good point.
“The short-term remedy is for any red-state AG worth his or her salt to immediately nullify any attempt by the EPA to implement the subject directives.”
They ought to file criminal charges against the EPA administrator. You know, like State officials in New York and Georgia are doing to Trump.
They could do that, too. The idea being to make the Dems understand that they’ve opened Pandora’s box by weaponizing the justice system and that they will suffer equally until they call-off their dogs.
“They ought to file criminal charges”
Which charge? I agree the epa is defiant, but is ther a specific charge?
Well, if they do it the way it has been done to Trump, then they can just make things up to charge the EPA administrator.
Even with this ruling the EPAs power is still vast and pervasive or maybe invasive would be a better characterization. Where I live along Chesapeake bay these regs still pose a real threat to home owners sometimes from the most minor infraction that most home owners would never conceive to be a “ threat to the environment.And the legal action is so expensive in both time delay and cost of representation that the EPA can get away with what ever they want to do or block.
In many cases the threat to wetlands from residential activity ( construction or remodeling landscaping maintenance dredging is’nt even significant . Would be nice if we could just count on our federal agency’s to use common sense and be reasonable .
And yes Duane I get that laws and enforcement application cannot be arbitrary and capricious. Just saying stop promulgating regs that are not needed. concentrate on the bigger threats.
“Even with this ruling…”
Is it really a Ruling if the EPA is un-Ruley and will play Red-Tag with the SCOTUS, by rewriting the struck down rule in such a way that it’s effectively the same as the old rule?
Can the SCOTUS hold someone in contempt for this and have them put away?
That was the question that kept running through my mind as I was reading the ATL article.
Does the US Constitution require a simple majority (5 of 9), a “super-majority” (7 of 9 ?), or unanimity (all 9) to initiate “Contempt of the Supreme Court” proceedings ?
Rud might weigh in at some point on the legal fine print but, as far as I’m aware, the EPA has done nothing wrong in rewriting the new rule in such a way that it’s effectively the same as the old rule. If, however, the EPA tried to enforce the new rule in the exact same way as the old rule then the EPA could be liable, although that would mean another court battle to get a new ruling. There are no shortcuts in law.
I will weigh in.The EPA has clearly revived the vague ‘significant nexus’ rule expressly struck down by SCOTUS. It should be easy to get the revised rule overturned by lower federal courts since they are bound by the now fairly clear SCOTUS precedent. In fact, I would think at least some jurisdictions might be willing to apply anticipatory permanent injunctive relief if appropriately requested, because the issue is now mostly black and white with few nuances.
Interstate commerce clause A1§8.3=>navigable waters=>waters indistinguishable from them (like wetlands along the Mississippi), but nothing else.
Rud ==> As I explained it to my wife, under the “new” rule, a portion of our lawn, often flooded and semi-permanently flooded in the spring, fqalls under the WOTUS rule — it has a ditch that lead to a ditch than ges in the storm drain that goes to the Hudson River. == significant nexus. EPA could disllow me using any fertilizer or weed control asit might “pollute” a navigable water.
Do you only use native plants in your wet spot.
I haven’t run into it (yet), but if the anti’s continue running things you will be told about the invasive seeds from your wet spot that need to be controlled/regulated in order to protect downstream stuffs.
The migratory bird concept was shot down as an attempt to create a commerce nexus. They will try anything.
The ACOE where I am has told me they will nexus storm/flood events.
5 year? yes
20 yr? yes
100 yr? yes
500 yr? yes
(I’ve currently have a 0.04 acre & and a 0.2 acre, isolated, that the Feds shouldn’t care about anymore. We’ll see how it goes.)
Can law survive in a world where words lose meaning?
John ==> It is the very nature of the beast to get nit-picky once major threats have been eliminated (the major good has been done) — illogic and nit-pickery replace sensible enforcement. These aencies strach the laws that created them to give their now-bloated staff something to do.
I’m waiting for the EPA to declare that any land that has ever been wet at any point in time since the earth was formed, qualifies as a wetland.
Or might ever become wet for that matter.
What can be done? What I would like to see would be fore the Supreme Court to rule that the EPA is itself a violation of the constitution and disband it.
Will that ever happen? No.
As long as the leaders of these rogue agencies face no consequences for defying the court, the only thing that will change is that the problem will get worse.
It’s always instructive to remember that so-called conservatives like Richard Nixon gave the Left everything it wanted and more, including agencies like the EPA and breaking the last tie to (gold) Bretton Woods. The latter, of course, set the stage for allowing the Federal government to spend and expand at will. Nonetheless, they still hated the guy, and forced him to resign once Ford was ushered in to replace Agnew.
I’d really like to see that too …
… but unfortunately I also agree that it’s almost certainly not going to actually happen.
Careful! The Supreme court justices that can disband ‘X’ today will be replaced new justices appointed by future unknown presidents and might decide to disband ‘Y’ and ‘Z’.
This is an area I have considerable experience with. Where I live we have a thorough local (county) and state permitting and review process with engineering, environmental study for critical area etc, you have to have your act together and the bay tributaries and wetlands are well protected. If you have everything done right the county and state approve you reasonably expeditiously.
Then enter the EPA- they sit on your approval, they are non responsive, you cannot get in touch with anybody there that knows about your case. And on top of that the entire process at the fed level is often arbitrary and capricious. Two very similar cases- one gets approved another stagnated with no explanation. Atleast at the local county and state level you can get a hold of some one or actually get a appeals hearing scheduled. I don’t know what some peoples love about big far off Federal government control over their lives and property is all about.
… because at the fed level, you don’t pitch up with a box of chocolates, they want to see at least a campaign contribution?
I saw where a guy did research on the price of bureaucracy. You approach any level of official, and whatever it takes to ‘convince’ him, you can divide by ten for the level below him, and multiply by ten for his boss’ level. So, if the lady at the permit office is happy with a $5 box chocolate, her regional manager can be had for 500, and the state rep for 50k, assuming two managerial levels between each.
Anecdotal evidence is in favour of this formula’s veracity.
Maybe you should give it a try?
John ==> The “arbitrary and capricious” aspect is one of the things that makes the EPA rule unconstitutional. The other is the lack of clear legal authority under the CWA.
Correct on both counts. But with respect to CWA, Congress could never have conveyed such authority because A1§8.3 does not grant it.
I permitted a project in Minnesota. the local and state permitting was completed and approved in about a year. The federal permitting took 4 years.
“they sit on your approval, they are non responsive, you cannot get in touch with anybody there that knows about your case”
The government that governs least… ?
Arrest the CEO and put him in jail for contempt of court.
[ Enter “pedant” mode … ]
I believe the Big Cheese of a US government agency is called something like either “the head of the agency” or “the agency administrator”.
“CEO” is private-sector-speak, not administrative-bureaucrat-speak.
[ Exit “pedant” mode … mostly … ]
As part of a group of people blatantly attempting to “overthrow” a ruling of the US Supreme Court, as established by your Constitution, couldn’t he (and the rest of them) be charged with “seditious conspiracy” instead ?
I believe the correct term for someone that blatantly disregards the laws of the country they are in is “outlaw.”
Personally the generic definition I prefer is
There is a certain mindset prevalent in far too many people that merely “rewriting” a law will suddenly cause existing “criminals” to say to themselves :
This group of people appear to genuinely believe that if a law is promulgated proclaiming “Thou shalt not kill” … to pick an example completely at random … then the murder rate will immediately fall to zero.
In other domains this mindset is characterised by the phrase “changing the messaging”.
The EPA don’t believe they are breaking the law – they believe it doesn’t apply to them at all. They are ‘Outside the Law’ hence Outlaw!
What would stop the majority from doing the same thing to … ?
As a forestry consultant in Wokeachusetts, I was once walking to review a timber harvest I was managing- with the state “Service Forester” whose job is partly about overseeing state forestry laws (especially regarding logging regulations)- stopped at one point next to a small (size of a bathtub) rut obviously formed 20 years earlier from logging machinery- why I didn’t locate that on the “cutting plan” as a wetland. This tiny rut had maybe 3″ of water in it- due to ongoing snow melt!
From the article: “The new rule document is 141 pages long”
I’m not surprised.
This is the kind of bureaucratic nonsense we need to get rid of in the next administration. Cutting regulations is just as important to our personal freedoms as cutting taxes is to our economy.
Bureaucrats, always seeking more control over us peons.
Been an item in hundreds of speeches. Thousands?
From the article: “This means that there will have to be further hugely expensive battles starting at Step 0 in the lower courts,”
Going digital, are you?
Tom ==> Just starting one step before Step 1. Sorta like calling Home Plate = Base 0, where the batter/runner starts.
That is an interesting way to put it, but to me it’s “home plate”, and the first week of college football is “week one”.
I don’t see any reason to use “week zero”, and it would just confuse things, and I don’t think we should confuse things any more than they already are. That’s just my opinion.
I’m suspicious when the language gets changed. It makes me think of “1984”. It makes me think of using the description “global warming” as opposed to using “climate change”. They don’t mean the same thing.
If you look at a nautical chart of Boston Harbor, the one that shows the inner harbor with all of the details, there is an area highlighted in magenta, with a note to “See Note B”. It is right along the waterfront east of the North End section of Boston.
Note B on the chart says “An Act of Congress, Public Law 90-312, declared the waterfront area shown in magenta to be nonnavigable.”
If you go read Public Law 90-312, it says
Public Law 90-312
AN ACT
May 18, 1968
To declare a portion of Boston Inner Harbor and Fort Point Channel [H. R. 14681 ] nonnavigable.
Be It enacted by the Senate and House of Representatives of the
United States of America in Congress assembled. That that portion of Boston Inner Harbor and Fort Point Channel in Suffolk County, Commonwealth of Massachusetts, lying within the following described “area is hereby declared to be not a navigable water of the United States within the meaning of the laws of the United States: Beginning at the intersection of the northeasterly sideline of Northern Avenue and the westerly United States Pierhead Line of the Fort Point Channel and running northwesterly by the northeasterly sideline of Northern Avenue to the westerly sideline of Atlantic Avenue; thence turning and running northerly and northwesterly by the westerly sideline of Atlantic Avenue and of Commercial Street to the southeasterly sideline of Hanover Street; thence turning and running northeasterly by the southeasterly sideline of Hanover Street to the southwesterly property line of the United States Coast Guard Base; thence turning and running southeasterly by the southwesterly property line of the United States Coast Guard Base to the southeasterly property line of the United States Coast Guard Base; thence turning and running northeasterly by the southeasterly property line of the United States Coast Guard Base extended to the United States Pierhead Line; thence -turning and running southeasterly, southerly and southwesterly by the United States Pierhead Line, to the point of beginning.
Approved May 18, 1968.
I used to live in the North End, and sailed boats out of a marina located within the magenta area. My landlady’s daughter was a staff member for Speaker Thomas P. “Tip” O’Neill, who represented this area. It was he who got this law passed, in order to permit the development of the waterfront in this area. It would have otherwise been tied in knots forever with environmental battles.
I have often wondered whether I could take my sailboat up into that area now, and empty the holding tank there. I would not, but I do think that I could.
rxc6422 ==> Oddly enough, you could legally bucket out your holding tank. What you cannot do is pump out — “discharge” — your holding tank. It is a weird definitional thing.
If you look at a nautical chart of Boston Harbor, the one that shows the inner harbor with all of the details, there is an area highlighted in magenta, with a note to “See Note B”. It is right along the waterfront east of the North End section of Boston.
Note B on the chart says “An Act of Congress, Public Law 90-312, declared the waterfront area shown in magenta to be nonnavigable.”
If you go read Public Law 90-312, it says
Public Law 90-312
AN ACT
May 18, 1968
To declare a portion of Boston Inner Harbor and Fort Point Channel [H. R. 14681 ] nonnavigable.
Be It enacted by the Senate and House of Representatives of the
United States of America in Congress assembled. That that portion of Boston Inner Harbor and Fort Point Channel in Suffolk County, Commonwealth of Massachusetts, lying within the following described “area is hereby declared to be not a navigable water of the United States within the meaning of the laws of the United States: Beginning at the intersection of the northeasterly sideline of Northern Avenue and the westerly United States Pierhead Line of the Fort Point Channel and running northwesterly by the northeasterly sideline of Northern Avenue to the westerly sideline of Atlantic Avenue; thence turning and running northerly and northwesterly by the westerly sideline of Atlantic Avenue and of Commercial Street to the southeasterly sideline of Hanover Street; thence turning and running northeasterly by the southeasterly sideline of Hanover Street to the southwesterly property line of the United States Coast Guard Base; thence turning and running southeasterly by the southwesterly property line of the United States Coast Guard Base to the southeasterly property line of the United States Coast Guard Base; thence turning and running northeasterly by the southeasterly property line of the United States Coast Guard Base extended to the United States Pierhead Line; thence -turning and running southeasterly, southerly and southwesterly by the United States Pierhead Line, to the point of beginning.
Approved May 18, 1968.
I used to live in the North End, and sailed boats out of a marina located within the magenta area. My landlady’s daughter was a staff member for Speaker Thomas P. “Tip” O’Neill (D, MA), who represented this area. It was he who got this law passed, in order to permit the development of the waterfront in this area. It would have otherwise been tied in knots forever with environmental battles.
I have often wondered whether I could take my sailboat up into that area now, and empty the holding tank there. I would not, but I do think that I could.
This is one reason why there needs to be an expiration date on virtually all 3 letter agencies that can only be extended by a super majority vote in both chambers and approved by POTUS. The aim would be to allow hopefully saner heads in congress to require sufficient guardrails to reduce if not eliminate this type of overreach. If congress can’t come to agreement, the agency simply goes away.
EVERY law of the US should be required to be reread and repassed in a maximum of a 2 year cycle.
That way, the congress would never have time to create NEW laws to deprive the citizens of the US of their God given natural rights, or to provide their cronies with free money.
And you would need only one conservative Congressman and one conservative Senator to repeatedly call a point of order when the ridiculous speed readers read the bills out loud as required, when their reading becomes unintelligible. They could also require a quorum to be present for the reading of the bills, essentially stopping committees from caring on while the bills are being read.
So, first new bill by a Republican congress and POTUS to amend ALL US laws to expire within 2 years, period.
Funny thing about the US constitution, the Framers were so afraid of the military that they only allow appropriations to last for 2 years, requiring each new congress to continue the spending.
They missed the boat, it should have been and needs to be ALL funding measures.
Poor way to attract talent
Having successfully stolen the last presidential election, and having fully weaponized every arm of the executive branch to attack and eliminate their electoral opposition, our now fully totalitarian communist Democrats are not much worried about what the Court might say.
Everybody does know that our actual current president, Barack Hussein Obama, is a lifelong actual literal communist, right? He was raised as a red diaper baby by his white capital “C” communist grandparents in Hawaii, and he “sought out communists for his friends,” in college, where he found Alinsky communism.
Saul Alinsky was the leading American communist of the 20th century. That’s with a small “c” because the American Communist party refused to follow the new direction for world communism set by the Italian Communist Antonio Gramsci. They insisted on following Marx’s original doctrine that the overthrow of liberty and democracy would come via class warfare of the proletariat against the capitalists.
Gramsci observed that the working classes we’re doing very well under capitalism and we’re not going to try to destroy it, meaning the communists needed a different strategy in their quest for totalitarian power. His new strategy was what his students called “the long march through the institutions.”
Alinski not only brought that strategy to the United States but he did Gramsci one better. He figured out how this “long march” could actually be achieved. Basically he took Friedrich von Hayek’s great anti-communist warning book, The Road to Serfdom, and turned it into a guidebook.
Hayek had warned that every violation of the proper bounds of government leads to new problems that can be politicized to justify yet more improper government expansion.
Alinski realized that the key to making this process work for the communist side was to gain control of the press. Then all the communists needed to do was destroy things and their control of the press would allow them to blame the destruction on their political opponents, allowing the communists to gain more and more power simply by creating problems.
In particular, Alinski recognized that the easiest place to create problems in America and gain power from it is by targeting race. All the communist had to do was advance policies that would destroy black people (like to make Aid to Families with Dependent Children conditional on there being no man in the house, married or otherwise, providing any kind of support).
This actual AFDC policy was highly destructive to all poor families, not just black ones, but it was all good to the communists. The more destruction the better in their eyes, since their control of the press allows them to blame everything on their political opponents.
The answer was always: “we need to provide more aid to unmarried woman with children” (more incentive for women to have children outside of marriage), “then things will get better, and anyone who disagrees is a racist.”
Now they have moved on to saying that enforcing laws against stealing, mugging, and beating are racist and must not be enforced.
Obama’s entire pre-electoral career was spent in the employ of Alinski communist “community organizing” groups founded by the direct students of Saul Alinsky. He was one of the few paid professional Communists in the history of America, and Hillary Clinton had even closer ties to Alinsky. She was directly mentored by the man himself, and wrote the first version of Obama care (socializing a full 1/7 of the US economy), way back in 1994.
It didn’t pass then, and it cost her husband Bill their party’s control of Congress, but it shows how far along the Gramsci/Alinski “long march” was. Hillary herself was a powerfully placed fully fledged Communist at that time, then Obama made it all the way to the presidency itself, where he set about to ensure that America would never have honest elections again.
Trump was able to defeat the margin of cheating in 2016, but Obama retained control of the intelligence agencies and the rest of administrative state, which is run 95% by Democrats. They were able to hamstring Trump’s presidency with their “Trump-Russia collusion” hoax, using it first to try to rig the 2016 election, and when that failed using it to perpetrate a coup-attempt against our duly elected president.
Then their final coup attempt did succeed: when they overthrew our electoral system, as was proven beyond any reasonable doubt by True the Vote. Just one small slice of Democratic Party vote fraud, the mass stuffing of ballot drop-boxes by 2000 Mules in five key counties, was enough to steal five key states, turning an Electoral College landslide for Trump into a stolen Biden “victory.”
These totalitarian communist thugs certainly aren’t going to let a little thing like the Supreme Court stand in their way. They already have a plan to pack the court as soon as they are able to steal back the House. That will take stealing more than five key counties, but they already have a massive censorship regime in place and they have already used our post 9/11 anti-terror laws to classify anyone who believes that the 2020 election was stolen as an officially designated terror threat, the same as al Qaeda.
The same was also done to anyone who speaks out against transgender indoctrination at school board meetings. These commie freaks aren’t kidding around. Parents against the transing and queering of their children are now officially designated as terrorist threats under our post 911 anti-terror laws, exactly the same as Al-Qaeda.
Those designations can be used to throw any of us into Guantánamo if that’s what these totalitarian communists decide they want to do. They can confiscate our assets. They can prosecute anyone who tries to help us. They haven’t used those powers yet, but the legal groundwork is all in place.
The Alinsky communists are every bit as totalitarian as the Stalinist-Leninist Communists. They only differ in their strategy for achieving a complete totalitarian communist/fascist monopoly on power.
National Socialist (fascist) versus International Socialist (communist) makes no difference. It’s the totalitarian socialism that is the problem, not whether it is national or international.
All fascists are communist and all communists are fascists. They are the same thing, marked first and foremost by their ruthless suppression of all opposition.
Obama is also an anti-white racist and he is an Islamofascist. That’s what the Ukraine war is about. Ukraine and Russia were ready to make a peace deal in early March of 2022 but Obama wouldn’t let Ukraine go through with it.
He wants mostly Christian Russia and 100% Christian Ukraine to kill each other, and if Russia and the United States end up in a nuclear war (which WILL happen if the we succeed in our proclaimed goal of driving Russia from Crimea, the warm water port that Russia took from the Ottoman’s in the 1700s), Obama will like that even better.
No one ever hated America as much as our actual current president, which is very bad position to be in.
Does this need to be on WUWT? Its a question for the author – the host might value it for free speech.
As usual the definition used is broad and vague and can be interpreted to cover anything from a lake to a stream to a puddle after a heavy rainfall. Britannica Dictionary definition of ephemeral … “lasting a very short time.” Typical political b.s.
Identify the ONE individual who is responsible for this, and NAME him/her. Blast them, ridicule them, focus on them and their errors, and what they are doing… but identify them by name. Ridicule, like sunlight is a great cleanser.
Michael S. Regan, 16th EPA Administrator.
New paperwork act: Require each sentence written into a “regulation” to be identified as the person who wrote it. Records to be kept of the lineage from the first writing of said sentence from the first computer on which it was written.
Then you will know what NGO started the crap.
Any attempt to obstruct where the language originally came from to be felony Obstruction of Justice. The convicted to never be employed by any organization that gets ANY money from the taxpayers to the US government. All trials to be held in a jurisdiction with a minimum 85% Republican voting population.
This is the problem with any created governmental alphabet agency. Without any sunset provision they continue to metastasize, but never die. All government creations must be “term limited”
How many divisions does the Supreme Court have?
They would rely on DoJ to do anything for them and DoJ is corrupt.
SCOTUS has 9 justices and no divisions. At the appellate court level there are 9 circuits, each supervised by one Justice. All federal district courts reside in one of the 9 appellate circuits.
This oversimplifies a bit, because there is in fact a 10th appellate circuit in DC for special cases like patent and trademark, and matters arising in DC—meaning with respect to most federal agencies. That is the very liberal one that Merrick Garland headed.
I think you are looking at the Jan 2023 version of the rule issued before the Sackett decision was issued in May 2023. See https://www.epa.gov/wotus/revising-definition-waters-united-states for links to the current direct-final rule (Signed August 28, announced August 29, and not yet published in the Federal Register.) This “confirming rule” removes the provisions implementing the significant nexus test and renumbers or deletes the remaining paragraphs and cross-references accordingly, and is only 20 pages long.
One page to list 6 changes in definitions to be made in the base Rule.
(II. Which provisions are amended? )
One page to basically say they don’t intend to change their practices.
(III. Severability)