Monday, January 5, 2015


Original Story:

Nothing better symbolizes the dangers of cracking the federal regulatory door than the Clean Water Act. Initially passed to limit discharges into "navigable waters," two government agencies are preparing to expand the act's reach once again in a way that would put nearly every drop of water in the United States under federal control. A San Antonio Water Rights Lawyer is reviewing the details of this case.

The Army Corps of Engineers and the Environmental Protection Agency want to redefine "waters of the United States" subject to regulation to include nearly every pond, wetland, ditch, drain and dry and pothole in the country. Virtually no body of water, no matter how small, would be out of reach.

This is not what Congress intended when it passed the Clean Water Act in 1972. At that time, the scope of the law was intentionally limited to align with Congress' authority to regulate interstate commerce. Its power extended only to waterways that could be used as commercial channels of navigation that cross state lines. An Austin Water Rights Lawyer assists water districts, municipalities, industry, and landowners in all aspects of water law.

That was an appropriate delineation of power, and did not intrude in a major way on the rights of the states to manage their own resources.

But the Corps and EPA have steadily stretched the definition well beyond what lawmakers intended, and have done so despite being slapped down by the courts.

In 2001, the Supreme Court in SWANCC vs. Army Corps of Engineers, forbade the agencies from regulating "isolated water bodies," meaning those that were not connected to interstate waterways.

Rather than comply with the court's interpretation, the agencies pushed ahead, deciding that any water that could possibly find its way into a navigable waterway was fair game for regulation, including culverts and agricultural drainage ditches. That placed much of the nation's farms under the Clean Water Act's thumb, and set up Rapanos vs. United States in 2006, involving a Midland area farmer. A Houston Water Rights Lawyer represent clients in issues that arise in water rights litigation, mediation, arbitration, and in trial.

John Rapanos grew corn on fields that were surrounded by century-old drainage ditches and criss-crossed with tiles, a clear indication that the property was never intended to be a wetland. Still, the EPA pounced on him when he filled in a low spot on his farm that held standing water for a few weeks during the wet season.

Rapanos was threatened with prison and nearly bankrupted before prevailing in the Supreme Court, which ruled the agencies could not automatically regulate wetlands just because they have a hydrological downstream connection to navigable waters.

Even that second ruling hasn't deterred the EPA and Corps. In clear defiance of the Court and Congress, they are now preparing rules that would give them potential authority over all tributaries, even the smallest of streams, and almost all standing water.

In the end of year spending bill, Congress inserted exemptions to the regulations for certain farming practices, but stops short of overturning the rules. The new Congress must step in and bring the agencies in compliance with both the law and the court rulings.

The Clean Water Act specifically promises to "recognize, preserve and protect the primary responsibilities of the states" to regulate and protect the water contained within their borders.

Federal agencies charged with carrying out the law are trampling on that promise and must be checked.

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