Water is essential to life — and liberty
Humans are made up of about 60 percent water — people cannot survive more than a few days without it, so whoever regulates the availability of water and its uses holds the ultimate power over life and death.
Our government wants that power. It must be stopped.
In October, the Supreme Court opened its final 2022 term with oral arguments in Sackett v. Environmental Protection Agency, a case in which the Court was asked to clarify the scope of federal regulatory authority under the Clean Water Act.
The government’s ambitions to control water rights got out of hand more than a decade ago when then-President Barack Obama’s EPA initiated a massive power grab by regulatory means, announcing: “Recognizing the importance of clean water and healthy watersheds to our economy, environment and communities, the Obama administration released a national clean water framework today that showcases its comprehensive commitment to protecting the health of America’s waters.”
The administration claimed to be concerned about water quality, but the real issues were land, power and control.
Under its announced “guidelines,” the agency — unelected bureaucrats — could have decided the extent of its own jurisdiction over every body of water of any size, and imposed binding regulations affecting everyone.
The EPA announcement had its origin in the 110th Congress’s Clean Water Restoration Act of 2007. The bill’s primary sponsors numbered among the House’s most left-wing members representing the safest liberal districts
Contrary to written law limiting federal jurisdiction to “navigable waters,” language confirmed by two Supreme Court decisions, the bill would have expanded the jurisdiction of the Clean Water Act of 1972 to include all waters of the United States and all “activities affecting these waters.”
Since all land is in a watershed, the result would have put national land use policy in the hands of the central government. In the bill’s formulation, all waters within the United States, including farm ponds, intermittent streams and ephemeral puddles, would be subject to federal regulation.
In short, the bill would have permitted the government the power to regulate any use of private and federal land for almost any purpose — without legislative authorization. This would have intruded on the states’ and individual property rights with damaging implications for communities, businesses, agriculture, forestry, open grazing land, energy production and mining.
The bill was never voted upon. A Senate counterpart bill died, too. But Barack Obama did not and the current administration does not recognize any legislative or constitutional boundaries to their ambitions. Both employed regulations as the means to attain the control they covet.
In December, the Biden EPA announced it is finalizing its rules on “waterways” — also without legislative approval — under the Clean Water Act.
The EPA’s ambitions are bad policy for business, agriculture, energy development, constitutionally guaranteed property rights and for personal liberties. In addition to constitutional rights, the American economy is at stake in the Supreme Court’s Sackett decision.
Food and fuel costs are already reaching record levels largely thanks to the policies of the Biden administration and congressional Democrats. Allowing the federal government further regulatory control of energy and/or agricultural endeavors and assets alone would surely make bad situations even worse.
The Supreme Court must clearly demarcate where “waters of the United States” end and non-federal waters or lands begin. The Justices must consider a clear, coherent, administrable definition to provide regulatory certainty, and constrain federal regulatory jurisdiction under the Clean Water Act.
Deciding the line of demarcation is critical, but defining it is not a simple matter.
The court must decide if “adjacent wetlands” must be physically connected to navigable waters, neighboring to such waters, or be merely “nearby,” a nebulous term favored by the administration that is subject to overly-broad interpretation, agency regulatory overreach and abuse.
How much could the EPA overreach? How abusive could their regulatory ambitions become?
Remember, all land is in a watershed, so in its ultimate manifestation, if your yard has low spots which retain ephemeral water after rainstorms, the EPA could theoretically declare your property a “wetland” and prohibit mowing to preserve “aquatic ecosystems.”
Think that’s hyperbole? Think again — after all, the Biden administration is involved.
Hopefully, in its Sackett decision, the Court will prioritize written law, judicial precedents, and the language of the Constitution above the administration’s and unelected federal bureaucrats’ appetite for power and control.