Do you own any land that has any stream, creek or wash running through it? What about a dry wash that only flows after a heavy rain?
If so, be prepared to learn that the Army Corps of Engineers and the Environmental Protection Agency plan to take control of that part of your private property. In March, the two organizations proposed a new Waters of the United States rule that would clarify which streams and wetlands, including those that are intermittent, seasonal or rain-dependent, would be protected under the Clean Water Act.
What exactly would that mean? It would mean that Waters of the United States would allow the EPA to have absolute power and authority over any stream, creek or wash that has been dry for hundreds of years, throughout the US. The authority would not only be for those waterways on public land but also for every one on private property.
Imagine that you live somewhere in the southwest and have the smallest of a dry wash that runs across your backyard. The new rule proposal would give the EPA and Army Corps of Engineers total control over that portion of your yard. They could and will dictate whether you put up a fence over the wash, clean out or channel the wash or even pipe it and put it underground.
Or imagine a land developer that purchases land on which to build a hospital or apartments, homes, business offices or stores. The developer spends several million dollars on his development only to have the land Gestapo come in and tell him he can’t develop the land because of a dry wash that runs through the middle of it.
Rep. Harold Rogers (R-KY) is Chairman of the House Appropriations Committee described the proposed rule as:
“The biggest land grab in the history of the world.”
“[The] economic impact of that would be profound.”
“A community needing to build on private land that had on it one of these so-called streams that you considered a waterway under the new rule would have to travel thousands, hundreds of miles to D.C., to get approval.”
“[It] would absolutely freeze economic activity in this country.”
“[The proposal is] proof in and of itself of the mal-intent of this administration toward the private sector.”
When Sen. Lisa Murkowski (R-AK) questioned Gina McCarthy, EPA Administrator, about how the new rule would affect the civil liberties of Americans and their ability to conduct business, McCarthy responded:
“Navigable” waters, which was the central point of litigation in a battle between the Supreme Court and the EPA regarding the Clean Water Act.”
“We are clarifying protection for the upstream waters that are absolutely vital to downstream communities.”
“Clean water is essential to every single American, from families who rely on safe places to swim and healthy fish to eat, to farmers who need abundant and reliable sources of water to grow their crops, to hunters and fishermen who depend on healthy waters for recreation and their work, and to businesses that need a steady supply of water for operations.”
Jo-Ellen Darcy, Assistant Secretary of the Army for Civil Works added:
“[The nation’s waters and wetlands] are valuable resources that must be protected today and for future generations.”
“Today’s rulemaking will better protect our aquatic resources, by strengthening the consistency, predictability, and transparency of our jurisdictional determinations. The rule’s clarifications will result in a better public service nationwide.”
“We not only took the exemptions, but we developed this interpretive rule that identified 56 farm practices, working with USDA, so that if these farm practices are what you’re doing, you didn’t need to ask a single question about whether they’re exempt.”
If you believe what McCarthy and Darcy said, then I have a bridge to sell you. Just look at what they have already tried to do control private land owners. Mike and Chantell Sackett bought nearly two-thirds of an acre in a new development. They set about making their plans for their dream home. Before they could start building the house, they spent three days hauling in dirt to fill in areas on the lot and get everything leveled off.
Suddenly, officials from the Environmental Protection Agency and the US Army Corps of Engineers showed up on the site and ordered the couple to halt all activity. It turns out the agencies suddenly declared the land in the new subdivision was a wetland. Six months later they received a compliance order from the EPA informing them that the lot was a wetland and that they had to restore it back to its natural condition. If they did not comply with the order, the EPA notice said that they could be fined up to $37,500 per day. Their case went all the way to the United States Supreme Court who ruled in favor of the Sacketts, but not before they spent a fortune on legal fees defending their private land.
There is also the case of John Rapanos who wanted to build a shopping mall on his land in Michigan which was 20 miles away from a waterway only to have the EPA slap him with violations and fines. A lower court upheld the EPA’s actions and fined Rapanos $5,000 and 3 years of probation. His also made it to the US Supreme Court who voted 4-1-4 in favor of Rapanos.
Peter and Frankie Smith purchased 20 acres of land outside of Santa Fe in hopes of building their dream home to retire to and live happily ever after. As is typical in any desert landscape there are dry washes and stream beds that cross their land.
In one dry streambed they found lots of trash which they spent time cleaning up and hauling away. As they picked up the discarded tin cans, wine bottles and other items they also smoothed off the bottom of the desert wash and cleaned it up to make it look nice.
That’s when the big bad Army Corps of Engineers moved in and told them that wash was a ‘water of the United States’ and that their cleaning and smoothing of the wash constituted illegal dredging and pollution flow problems that could affect the Rio Grande River, some 25 miles away. By having the wash declared a water of the United States the Smiths were now subject to the rules and regulations of the Clean Water Act, which they were now in violation of according to the Army Corps of Engineers.
These are only a few of the growing instances where the EPA and Army Corps of Engineers have already tried to bully private land owners over the use of their property. If the newly proposed rules are allowed to be adopted, it will only get worse and thousands of land owners will be bullied and denied their constitutional rights to the use of their own private property. We need to contact our members of Congress and demand that they stop the new rule from taking effect.