What has happened is that the Supreme Court has twice told the EPA and Army Corp of Engineers that it has overstepped its jurisdiction under the Clean Water Act. First in Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers where the Supreme Court invalidated the Corp’s Migratory Bird Rule. That is if migratory water fowl would land on your property it was considered a wetland. Second was Rapanos v. United States where the the Corp and EPA tried to convince the Supreme Court that “Navigable Waters” included underground conduits. Scalia wrote a scathing opinion, but Kennedy wrote a wishy washy concurrence.
This latest issue is the EPA and Corp’s “work around” those two opinions. They declare it a wetland and set forth bureaucratic hoops which the plaintiffs must go through before they challenge the designation of a wetland. I think the Supreme Court has seen this for what it is; namely the EPA and the Corp thumbing their noses at the court.
If I had to bet, I would say this will be strike three for the Corp and EPA
Here in the San Francisco Bay Region, a land owner in Sonoma County had the Army Corps of Engineers declare his man-made stock pond a “wetland.” This is just another example of a Congress that can’t legislate it’s way out of it’s own ass. The Corps should be disbanded and the EPA shut down. They are simply class warfare types that object to people enjoying their own property. The other thing that they do is put a land owner on the permit merry-go-round. By the time that permit #4 is issued, permits 1,2 &3 have “expired.” Ergo, you go around and around and never get to build. I have had personal experiences with the Coast Guard with respect to “navigable:\” waterways. Your water runs into a drain, that runs into a creek, that runs into a river, that finally runs into San Francisco Bay. So by extension, your drainage is a “navigable waterway. Funny thing was, I didn’t see the Coast Guard Cutter parked out back.