Commentary: Reining in WOTUS (October, 2015)

by John McClaughry John McClaughry

John Poszgai, a Hungarian truck mechanic, was conscripted into the Soviet Army in the 1950s. When Hungarians rebelled against Soviet tanks in 1956, he fought for his country’s freedom. When the Red Army suppressed that gallant uprising, he escaped to the land of freedom and opportunity, America.

He found work as a mechanic for International Harvester in Morristown, Pennsylvania, and proudly became an American citizen. He opened a truck repair service, bought a home, and in due course bought a 14 acre parcel across the street.

Thirty years earlier the municipality had dug a ditch diagonally across the property to drain off stormwater from the city street. Over the years other parties illegally used the lot to dump commercial scrap, and filled the drainage ditch with seven thousand old tires.

The blocked ditch caused stormwater to back up on Poszgai’s repair shop. He decided to buy the lot, remove the junk and tires, and put up a new truck repair building on the property. That decision ruined his life.

The Army Corps of Engineers, charged with regulating discharges into navigable waterways, found out that Poszgai had removed the thousands of tires from the drainage ditch and had brought in fill to make the lot useable for building. It sprang into action, and brought along the Environmental Protection Agency and the Department of Justice. EPA charged Poszgai with 41 counts of violating the 1977 Clean Water Act.

What then ensued is a long and shocking story. In 1991 freedom fighter John Poszgai was convicted of environmental felonies and sentenced to three years in prison and a fine of $202,000. He lost his business, filed for bankruptcy, and his daughter lost her job as a local reporter because her name was Poszgai. He served a year and a half in prison, but a judge, highly skeptical of the government’s assault, reduced the fine to $5,000.

The point of this narrative is that for decades the Army Corps of Engineers and the Environmental Protection Agency have stretched beyond all recognition their constitutional power to “regulate discharges into navigable waters of the United States.”

The prosecution of John Poszgai was one of the most shocking examples, but there are hundreds more – not enforcements against big polluting industries, but against ordinary citizens who innocently filled in tiny ditches or soggy depressions to improve their properties. Despite a string of Federal court cases slapping down the EPA’s overreach, the assault has gone on unabated, regardless of who is in the White House.

This issue is highly relevant now, because on June 29 the Obama EPA finalized a rule called WOTUS – Waters Of  The United States. EPA argues that the new rule clears up uncertainties and complies with adverse court decisions. Critics say it codifies every imaginable Federal regulatory overreach.

  1. Reed Hopper, the Pacific Legal Foundation’s chief lawyer opposing the WOTUS rule, says “The new WOTUS definition….defines the waters of the United States so generally that federal regulators will have power over almost all of the  nation’s waters and much of the nation’s land around those waters. ‘Navigable waters’ and the lands  associated with those waters will now fall under EPA regulatory control and will include all ‘tributaries’ (no matter how small and remote), ‘adjacent water bodies’, 100-year floodplains, and, on a case by case basis, any water within 4,000 feet of a ‘tributary’ or other covered water.”

Hopper points out that the expressed intent of Congress in passing the Clean Water Act was “to recognize, preserve and protect the primary responsibilities and rights of States” to control local land and water use. The CWA was enacted to allow the Federal government to regulate discharges into navigable interstate waterways, plus by extension marshes and wetlands adjacent and connected to such waterways. It was not enacted to put EPA in charge of drainage ditches, farm ponds, and (in Vermont) “vernal pools”.

On October 9 the 6th Circuit Court of Appeals acted favorably on a petition from 31 states and state agencies (of course not including Vermont), asking that the WOTUS rule be suspended until a full trial on its constitutionality.

Long ago Thomas Jefferson presciently observed, “As government advances, freedom gives way.” That maxim was never more evident than in the persecution and jailing of John Poszgai and the many other victims of federal environmental regulators and prosecutors eager to rack up criminal convictions against legally outmanned defendants.

If the courts and/or Congress can defeat this latest Obama regulatory power grab, over the well-funded howls of the entire “environmental movement”,  Americans will have won a major victory over a powerful and perennial threat to their rights, liberties, and peaceful use of their property.

- John McClaughry is vice president of the Ethan Allen Institute (www.ethanallen.org)

 

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