Justice Kennedy defined "navigable waters" as applying to any land or water that has a "significant nexus" to navigable waters, and the plot of land or water must be significant enough "to perform important functions for an aquatic system incorporating navigable waters." Kennedy's definition did not go on to explain the process of the "significant nexus" test, this placing more ambiguity and broad power in the hands of the government.
Although property rights supporters saw this Court ruling in a positive light, there is no question that the Rapanos decision left our clean water laws a little murkier than they were before.
The court was split in its decision. 5 justices--Scalia, Thomas, Roberts, Alito, and Kennedy--were not convinced of Rapanos's conviction. Justice Scalia, on behalf of 4 justices, determined that the Clean Water Act's definition of "navigable waters" applies to any parcel of land or water that drains to or is in the extended watershed of navigable waters.
Did an arrogant and armed "wetlands police" arrive with the election of President Obama? No, this rogue government agency's origins come from a seemingly responsible piece of legislation called the Clean Water Act. In 1989, President George H. W. Bush vowed that America would lose no "wetlands" under his watch (a vow he unfortunately kept better than his "no new taxes" pledge). Under the 1st President Bush, a government wetlands manual was created that essentially emboldened federal agents' power, allowing them to seek out and punish private property owners for doing nothing more than moving dry dirt on dry land. The federal government had--however erroneously, illogically, or nonsensically--defined these dry areas as "wetlands." It turns out that a wetlands is simply whatever an agency like the EPA says it is.
As Paul Larkin of the Heritage Foundation explains, "The Lacey Act would not raise concern if the only penalty were a civil fine, but the law authorizes up to one year's imprisonment for every violation of the act." Notably, the original Lacey Act of 1900 contained a penalty "not exceeding $200," and there was no provision imposing jail or prison time.
As the Heritage Foundation notes, the Lacey Act in fact "violates one of the fundamental tenets of Anglo-American common law: that 'men of common intelligence' must be able to understand what a law means.. The criminal law must be clear not to the average lawyer, but to the average PERSON. Even if there were lawyers who could readily answer intricate questions of foreign law--and do so for free--the criminal law is held to a higher standard\."
The definition of wetlands has become so absurd and transparent that the Army Corps of Engineers developed the "migratory bird theory." This theory states that if your land is a stopping point for any migratory bird that has traveled between real navigable waters, then your land is now de facto connected to the interstate navigable streams. I'm not kidding.
This theory is irrational & completely illogical. How did it ever become enforceable law? It happened because Congress has abdicated its duty in this area. Citizens often run afoul of these rules inadvertently due to the constant evolution of complex and unexplained regulations.
However, they filed their own lawsuit in federal court, arguing that the Administrative Procedure Act entitled them to a hearing before a judge. Yet the Sixth and Fourth Circuits rejected any possibility of judicial review. Is this not a complete violation of the separation-of-powers principle? These circuit courts essentially handed the EPA free rein over innocent Americans and their private property. Our government was literally telling the Sacketts that in the US, you are free--unless the EPA decides to get involved, at which point your right to due process and private property becomes null and void.
Too often our rights are violated by abusive and power-hungry EPA bureaucrats who use threats, coercion, and force to implement power grabs. I wish these instances of abuse were random and the exception, but they have unfortunately come to characterize what many Americans now rightly see as a rogue government agency. EPA regulations have hampered landowners' ability to manage their private property as they please and have seriously impaired job creation. As with the massive cost of the EPA, many Americans are unaware of the routine suffering caused by the overreach of such regulatory agencies.
During one of the dozens of hearings held regarding this property, an architectural review board member said, "In my former life as a seagull, I was flying up and down the California coastline and saw your house built shaped as a seashell." And because his house plan did not match the seashell-shaped house this board member envisioned in her previous life as a bird, she voted against approving any of his plans.
Some would argue this board member to be certifiably insane. This landowner's American dream and basic constitutional right to private property was stifled due to a person in a position of power who is delusional at best. This is literally crazy--and if this story does not illustrate the perils of power-hungry government interventionists, then I do not know what does.
It remains a dangerous situation, though, because the definition of "navigable" is still nebulous and arbitrarily decided by the Corps. Congress has abdicated its responsibility to provide clear laws and guidelines for regulators and citizens to follow. I have introduced the Defense of the Environment and Property Act of 2012 in order to:
Our federal government regulates everything and anything. How much water goes into you commode. How much water comes out of your showerhead. The temperature of the water in your washing machine. How many miles to the gallon your car must get.
Americans have the right to consume these products without having the federal government second-guess their judgment or thwart their wishes. If there are legitimate concerns about the safety of unpasteurized milk, those should be addressed at the state and local level. Many Americans have done their own research and come to the conclusion that unpasteurized milk is healthier than pasteurized.
Citizens doing their own research on what they put into their bodies, learning about what they can eat, drink, or take for medicinal purposes--this information is often blocked by agencies like the FDA, a clear violation of the First Amendment.
Justice Samuel Alito was most skeptical while questioning the Justice Department's deputy solicitor general and legal counsel for the EPA, exclaiming, "Don't you think most ordinary homeowners would say this kind of thing can't happen in the US? You buy property to build a house. You think maybe there is a little drainage problem in part of your lot, so you start to build the house and then you get an order from the EPA which says: You have filled in wetlands, so you can't build your house; remove the fill, put in all kinds of plants; and now you have to let us on your premises whenever we want to."
Justice Stephen Breyer implied that the EPA was thumbing its nose at 75 years of judicial precedent, during which "the courts have interpreted statutes with an eye towards permitting judicial review, not the opposite."
It was with great pleasure that we saw the Supreme Court rule 9-0. Every member of the bench saw what was wrong with the EPA and our federal government giving no recourse to its citizens.
|2012 Presidential contenders on Environment:|
Green: Dr.Jill Stein(MA)
Libertarian: Gov.Gary Johnson(NM)
Justice: Mayor Rocky Anderson(UT)
Constitution: Rep.Virgil Goode(VA)
Peace+Freedom: Roseanne Barr(HI)
Reform Party: André Barnett(NY)
AmericansElect: Gov.Buddy Roemer(LA)
Please consider a donation to OnTheIssues.org!
Click for details -- or send donations to:
1770 Mass Ave. #630, Cambridge MA 02140
(We rely on your support!)