Friday, January 4, 2013

Court Slaps Down A Vast EPA Overreach

Q: When can unpolluted rainwater be considered a pollutant?

A: When the EPA calls it storm water run off in a vastly expanded interpretation of the Clean Water Act. Or at least they could until the other day, when a Federal judge in Virginia ruled against them.

The EPA reinterpreted its authority under the Clean Water Act some months ago to claim authority over storm water run off. They did so under the theory that storm water run off would eventually pick up pollutants and deliver them to a water source covered by the Clean Water Act. This reinterpretation would potentially have expanded EPA authority to every creek, flood plain, and water drainage path in the U.S., and then from there to include all the land up to the covered water source. It would make of the EPA the final arbiter on acceptable land use and development over a massive portion of our nation's land. It would also have given the EPA authority to order plans of remediation on such land - and if you don't know how onerous and draconian such orders can be, here is but one example.

The Clean Water Act itself proffers EPA jurisdiction over bodies of water with a "significant nexus" to "navigable waters." This has been subject to a great deal of interpretation over the years, but none has come close to interpreting this to mean mere creeks and drainage sites. More importantly, Congress considered giving the EPA authority to regulate storm water run off during the 1986 amendments to the CWA and opted not to grant the EPA such authority. No problem for the today's EPA - they just unilaterally claimed the authority. (As I have written here, the out of control regulatory bureaucracy, operating extra-constitutionally as a super legislature outside of direct Congressional control, is the single greatest systemic threat to our nation today.)

This from Fox News:

Virginia officials scored a key victory Thursday in their battle with the Environmental Protection Agency over what EPA critics describe as a land takeover.

U.S. District Judge Liam O'Grady in Alexandria ruled late Thursday that the EPA exceeded its authority by attempting to regulate stormwater runoff into a Fairfax County creek as a pollutant. O'Grady sided with the Virginia Department of Transportation and the Fairfax County Board of Supervisors, which challenged EPA's stormwater restrictions.

"Stormwater runoff is not a pollutant, so EPA is not authorized to regulate it," O'Grady said. . . .

See, not all judges need to tarred and feathered. That said, all bets are off as to how the Circuit Court or Supreme Court will rule on this issue. If the Obamacare mandate can be considered a valid tax, you can bet that John Roberts and four other activists on the Supreme Court can find that storm water run off is a pollutant, irrespective of Congressional refusal to grant EPA that authority.

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