Green Watch

Green Watch October 2015: “Waters of the United States,” including Creeks and Ditches: Obama bureaucrats work to expand their power over waterways, land, and Americans’ lives


“Waters of the United States,” including Creeks and Ditches
Obama bureaucrats work to expand their power over waterways, land, and Americans’ lives [PDF here]

By Marita Noon

Summary: Nameless, faceless bureaucrats in the Obama administration are seizing on a loophole—ambiguity in a split Supreme Court decision—in order to vastly expand the federal government’s power to control waterways and land throughout the United States.

The term “Waters of the United States” (WOTUS) refers to the waters regulated by the federal government, with most of that regulation conducted by the Environmental Protection Agency and the U.S. Army Corps of Engineers.

Under the Constitution, the federal government, rather than state and local governments, has jurisdiction over waters that carry goods and people between the U.S. and other countries or between U.S. states. As the power of the federal government has grown, this jurisdiction has come to cover all navigable waters, even lakes and rivers within states.

Surprise! If the Obama administration gets its way, WOTUS will include every pond, creek, stream, and ditch in the country, and the price will be paid by farmers, developers, manufacturers, taxpayers, and consumers—and sweet old ladies hoping to build gazebos.

On August 28, 2015, the definition of the WOTUS changed—not in the dictionary, but in the government’s official journal, the Federal Register. The moment passed with little fanfare in the media and among members of the public. Outside a few groups such as poverty rights activists and farmers, Americans had little sense of what was happening. Now, unless the courts decide otherwise, people who learn the importance of the definition of WOTUS will find out the hard way. Just try to plant or build something on your private property, and you could receive tens of thousands of dollars a day in fines!

Have you seen the TV ads for flood insurance in which a woman exclaims, “But I don’t even live near the water!”? If you don’t live near the water, you may think that the new interpretation of WOTUS is nothing you need to worry about. That would be wrong.

You’re not immune
The federal government has great power to restrict one’s otherwise legal activity on one’s own private property, as I learned nearly nine years ago after I assumed the leadership of the Citizens’ Alliance for Responsible Energy.

One of my first activities in that position was to attend a property rights meeting in Washington, D.C. About thirty people were there, mostly average citizens, not professional advocates. Most were people who had experienced the harsh reality of their own government telling them they couldn’t engage in simple activities on their own property. In searching for some help and guidance, these people, this little band of warriors, had stumbled upon the property rights movement,

One of the attendees was a sweet, gentle-spirited woman with qualities any of us would wish for in a grandmother. She told us there was a little creek that trickled through the back edge of her property. To enjoy the setting, she’d embarked upon construction of a little gazebo near the creek where she could sip a cup of coffee in the morning or a glass of wine in the evening. Maybe her grandchildren would have weddings there. At one point early in the process, when she had just a few boards erected, there was a knock at the door. The folks at the door were from the federal government and they weren’t there to help. They told her that her property was a “wetland” and therefore her gazebo was illegal and had to be torn down immediately. She was forced to comply. At the gathering in Washington, she asked, “How could this happen in America?” [Click HERE for the rest of the article.]

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