The EPA, Water Rights, Property, and Freedom

The EPA may have lost a round in their battle to seize regulatory control of all of the nation's water when Virginia attorney-general Ken Cuccinelli defeated them in court last month, but the agency is still working to get control of more and more regulatory powers over our country's water supply.

For anyone unfamiliar with the case, the EPA had determined that storm water runoff was a pollutant, or at the very least a conduit for a pollutant, and that the agency had the power to regulate such runoff in Virginia at considerable expense to the state and the individual residents. The EPA's argument in this case was that since Congress has not specifically excluded their authority to regulate storm water runoff, the agency is authorized to regulate it, and they have the rights to issue rules managing the runoff. Cuccinelli successfully argued that using the EPA's argument, the agency could also infer that it had the authority to invade Mexico since Congress had not specifically denied them this authority either.  Judge Liam O'Grady ruled in favor of Virginia and against the EPA's overreach.

While Cuccinelli's victory was significant, it is only one battle in an ongoing war between the EPA and property owners.  As of January 15, 2013, the EPA is still waiting for the White House to review its proposed  new guidance  regarding "Waters of the U.S.".  Since 2011, the Environmental Protection Agency and the Army Corps of Engineer have been trying to expand the Clean Water Act to expand the authority of the EPA beyond its current authority to regulate navigable waters and waters adjacent to navigable waters. (The EPA had tried unsuccessfully to expand their authority under the Bush Administration but they had been rebuffed.)  By expanding the regulations to include virtually all waters and wetlands,the EPA will have increasing authority over developers and private land owners.  Land owners will be subject to federal regulation and expensive federal permits when developing their property.

Although the EPA argues that the new proposals are merely "guidance" and do not rise to the level of rule making, in reality each new bit of authority that the EPA acquires increases federal authority and undermines the rights of property owners. And during the past four years, Director Lisa Jackson's EPA has issued 1824 regulations costing businesses and consumers billions.  Of these, twenty are considered major regulations.  By the EPA's own estimates, these rules will cost more than $7 billion in initial compliance and over $44 billion in annual direct compliance costs.  Do we really believe that an agency this out-of control does not plan to act on a non-binding guidance document at the expense of every property owner and developer in their potential path?  Every time the EPA flexes its muscles, Americans lose their rights and incur additional expenses, and they are able to reverse these losses only through lengthy and expensive legal battles.

One of the many troubling aspects of the EPA's guidance document is that it ignores the Clean Water Act's acknowledgement that some waters are under the exclusive jurisdiction of the states, and the federal government does not have jurisdiction over these waters at all.  By claiming authority over all waters, the EPA and the ACE are undercutting states' rights in a powerful way.

We saw an example of this overreach last year when the federal government attempted to take control of the regulation of New Mexico's underground water supply.  As I wrote last August in the post entitled Water, Water Everywhere, Southern New Mexico is home to a vibrant and prosperous farming community made possible through irrigation, both from the Rio Grande, which the federal government does have power to regulate, and through irrigation from ground water wells, which it does not currently regulate.  Last August, the Feds sued the state of New Mexico for control of the ground water.  Had they been successful in that case, which thankfully they were not, the federal government would have had the authority to pump out the groundwater from New Mexico and ship it to other states, leaving our state with insufficient ground water and rendering our properties completely worthless.

The federal government's desire to control and regulate the use of the U.S. water supply should be extremely troubling to every American.  This is an unprecedented attack on property rights and on states' rights.  Without access to water, ownership of land has no value.  If the government can successfully gain control of the use of and access to water, they can successfully dictate where we can live and work.  They can render entire communities dustbowls by simply cutting off the water.  They can decide which farms are allowed to thrive and which ones become barren.  They can charge taxes and fees on private wells on private property.  The options for control are endless.

Last year, Congress and the Senate both introduced bills to prevent the EPA's final guidance document from ever being implemented or from being used as the basis for a final rule.  But in the current gridlocked environment in Washington, bills limiting the power of the EPA have little chance of passage.  Battles over water rights are more likely to be settled through legal battles, state by state, as brave attorneys-general like Cuccinelli fight in court to make sure that their states' property owners are protected.  Every state victory against the EPA reinforces the principle of private property rights and states rights and preserves a piece of our freedom. But in order to win, we have to be willing to stand up and fight.

Alexandra Swann is the author of No Regrets: How Homeschooling Earned me a Master's Degree at Age Sixteen and several other books. Her novel, The Planner, about an out of control, environmentally-driven federal government implementing Agenda 21, is available on Kindle and in paperback. For more information, visit her website at