The Regulation That Drastically Infringes Landowners’ Rights

[Geee]

Heritage Foundation:

On March 30, the Supreme Court heard arguments in U.S. Army Corps of Engineers v. Hawkes Co. This case is one of a collection of land use cases that trickle into the Court from time to time, all representing the same problem: The Clean Water Act drastically limits the rights of landowners to build or develop on land that constitutes “waters of the United States” (WOTUS). Unfortunately, the term “waters of the United States” is left undefined.

 

This leads to what, in many cases, appears to be “interpretation via whim” by the U.S. Army Corps of Engineers—the agency tasked with issuing regulations to implement the Clean Water Act. The Corps of Engineers regulations are notoriously ambiguous, complex, and expensive to comply with. According to one study, obtaining a permit costs an average of $270,000 and takes more than two years to obtain.

 

The regulations themselves stretch the imagination in terms of what constitutes a “wetland.” Just consider some of the more absurd scenarios that have been litigated over the years.

 

[Smokin_Joe]

The standard once was "navigable waters", which became, quite literally, waters in which a log could be floated.

 

Now, the effort is on to include any water, which could include intermittent bodies of water or intermittent streams, without regard for being navigable, or even directly connected to waters which are navigable.

 

Included in this are areas designated as 'intermittent wetlands'. If there is an area on your property which is periodically inundated, be it with snow melt in the spring, rainfall, or tidewater, that area can be so designated, giving the Corps of Engineers and/or the EPA control over that area of your property, and subjecting the landowner to fines and/or prosecution for violations of regulations applied thereto.

 

The regulations appear to be applied in an arbitrary and capricious manner, but each person fined under regulations who cedes in the face of the legal might of the taxpayer-funded government establishes a test case, a precedent, which can be used in future prosecutions. In the case in Idaho, and in other cases where people ultimately end up losing their land over clearing brush and filling in low spots or improving drainage, fines exceed the value of the property.

 

It is nearly impossible for the average person to anticipate such violations because the very terms are vague. What is next? The groundwater beneath our feet? The 'runoff' from our roof? Perhaps even our vital essences? Humans and other animals are composed of over 90% water...

 

 

[SrWoodchuck]

The standard once was "navigable waters", which became, quite literally, waters in which a log could be floated.

 

Now, the effort is on to include any water, which could include intermittent bodies of water or intermittent streams, without regard for being navigable, or even directly connected to waters which are navigable.

 

Included in this are areas designated as 'intermittent wetlands'. If there is an area on your property which is periodically inundated, be it with snow melt in the spring, rainfall, or tidewater, that area can be so designated, giving the Corps of Engineers and/or the EPA control over that area of your property, and subjecting the landowner to fines and/or prosecution for violations of regulations applied thereto.

 

The regulations appear to be applied in an arbitrary and capricious manner, but each person fined under regulations who cedes in the face of the legal might of the taxpayer-funded government establishes a test case, a precedent, which can be used in future prosecutions. In the case in Idaho, and in other cases where people ultimately end up losing their land over clearing brush and filling in low spots or improving drainage, fines exceed the value of the property.

 

It is nearly impossible for the average person to anticipate such violations because the very terms are vague. What is next? The groundwater beneath our feet? The 'runoff' from our roof? Perhaps even our vital essences? Humans and other animals are composed of over 90% water...

 

 

 

Welcome, @Smokin_Joe! Already in Colorado, it is against the law to collect your runoff. I assume that because the State of Colorado has already sold it's runoff & snowpack to adjoining states and even Mexico. Water law in pointyland is archaic & capricious. I had a friend that had to maintain a ditch in front of his property...whether wet or not...in order to claim irrigation rights to his truck garden. My in-laws "witched" their own water well...and were able to use that water for their truck garden & later when water restrictions were imposed. The mineral content was too high to be potable, though. Sure made the grass green. When my father-in-law passed, we needed to do a remodel (well shaft collapse, new casing, new pump & sandpoint) but it was an 18' depth...so was worth it. The water table began to make it start to be intermittent, when we sold the property after my MIL passed. Water. More precious than gold, if you don't have any.

[Smokin_Joe]

Out west, if you control the water, you control the land. Without water, the land is useless.