I got ya know it's in the studio with us the executive director the Pacific legal
foundations Washington DC center and PLF
on set senior fellow for constitutional law ok cyclical punish
yeah SK a new acronym for me specific legal .org slash dc-3 under is the
website I'd welcome back to the program
thanks so much for having me back nice to have you with us you I
it's interesting I K last Friday I think it was on
on our TV show I had a a debate with the
Chris Chris almoner conservative commentator and she was like
the EPA wants to regulate potholes in your backyard
and I was like now now she was like really insisted I
you know and and and I thought this can't be um
tell me about well I will surely I think I that she was quoted
I wish it was just puddles that that they're trying to regulate
on under the Clean Water Act I
EPA in the Army Corps have jurisdiction to
regulate discharges into navigable waterways that right like it I cigarette
in 1974 their first correct interpretation of the statute
was that it was you know barges in and in commercial
bezels on but shortly after that they began to
to go awry and and they they've run into two Supreme Court cases including one
the Pacific Legal Foundation one
that tried to limit their reach I but now
endure some a proposed rule that their considering
a not only do they regulate Pauline's
that are only cool water part of the year but they even want to regulate
dried
ditches we had a case where on in the desert
you know most to the year when it rains the rain just soaks into the desert but
a couple times a year
a ditch will carry it on Arroyo they call it in that part of New Mexico
will will carry the water to another ditch which will carry it to a dry creek
bed
which will occasionally go into the Rio Grande and they told these people he
couldn't clean trash
out of their dry creek bed so under the proposed rule
there's almost no area of land
where water might fall and might flow into some other stream
that the Army Corps of Engineers
and EPA doesn't claim is it could regulate isn't
for stalling in the details ever before that isn't the theory behind that that
you know this may be occasional waterway but its
gonna end up in somebody's waterway and that somebody else's drinking water
well thirst there there could be a lot of theories but though
but what's clear from the serb to Supreme Court cases including
the Ripon Usman the Pacific Legal Foundation r1
is that the statute only allows them to actually regulate the navigable
waterways
themselves and some very sensitive adjacent
wetlands right but not these these these islands it one more point I would
probably disagree but with us that I'd say
let's change the statute let's broaden good I point yeah that would be
unconstitutional so that's the second point that
how it was foundations because as the supreme court correctly found in
NFIB be case versus the Obamacare case
in Lopez and Morrison there are limits
to the federal Commerce Clause you can't just come up with a headache sort of
chaos
hypothetical wink it can't be too attenuated
is what the supreme overshadowed or something other than the commerce Co
well if there is some sort of constitutional authority perhaps but the
kinda regulations section 8 you know they've
what what's the best interest to the public there is no question general
welfare the public there is no
general Joan welfare clause is part the preamble that's not an option or else
out it's also an article 1 section 8 I'd be glad to read I
but article 1 section 8 has a a number the new major powers in
and as the Supreme Court in Lopez and in subsequent cases said
if anyone clause would swallow up the others
must be an incorrect interpretation that's not what Hamilton said I mean
Alexander Hamilton if I encourage you go back and read his 11-point
I had already manufactures I mean he go there's a hole on profits in there about
the reason that we put the general welfare into the Constitution was
because we want other broad as possible power for government because we have no
idea what future generations are going to confront
up there was a great debate between federalists anti-federal
but in Hamilton of course wanted more government and Patrick and hear what can
I wrote they small George Washington Secretary to the Treasury
all agreed that there were serious limits and
all
all of them would be rolling over in their graves at the kind of theory that
you would read into that
the consecration respectfully but but but none of them are here to
speak for themselves here's back to your your point about the
I have the regulations right here in my hand number
nm to you in a second maybe you can point something out to me that I'm
missing it says under the proposed first section the regulation section at the
agency's
propose to define quote the waters of the United States
for all sections may go through 301 311 bought a bottle
that all waters which are currently used were used in the past I may be
susceptible to use in interstate or foreign commerce right that's
think including all waters which are subject the ebb and flow of the tide
all interstate waters including water wetlands territorial seas impoundment a
traditional level water tributaries
waters including wetlands adjacent to and on a case Pacific bases other waters
including wetlands provide that those waters alone or in combination with
others similarly situated waters
include wetlands including the same region have a significant Nexus
and then they say the opposite then they say or what is the opposite they say
those waters and features that would not be waters in the United States
are and this is where I don't understand what you and what Chris were saying
would not be regulated by this would not be under their purview
are and i'm quoting waste treatment systems including treatment ponds are
lagoons
prior converted land a cropland
ditches that are excavated holy up lands drain only %uh plans and have less than
perennial flow there jerk a childish
ditches that did not contribute flow either directly or through another water
to a traditional
navigable water interstate water the territorial seas are an impound
the at the following features: artificial irrigation artificial lakes
or ponds are fish reflecting pools
small ornamental waters water-filled depressions created incidentally
construction activity
there's your puddles from it they're saying none other stuff is regulated
groundwater including ground water drain through subsurface drainage systems
and gullies and reels in on what what what Lance Wales
what am I missing where where is the the puddle in my backyard
well it it it was included in the first section you read the exclusion that you
read is actually
I think much more limited the new magic remember it said only ditches
that are in %uh plans that actually never
have water that that flow could possibly flow downstream
were or or reach are are in this exception this exception actually shows
how
amaze for for the owners and know how to read is no hunter
when they say it is water that can contaminate other water we're not gonna
regular yet that
the but what's wrong with but the other accepts that the coverage section that
you first read said
and any waters on a case by case the for example any tributary
includes any dry creek bed were any Creek
in your backyard of or your neighbors but I get there and have her significant
Nexus yesterday tional and as far as part of what you also red
is they also believe in this aggregation theory what the date they look at any
coverage in any courage in could be all the Central Valley Cup California
a hundred to thousands of acres of the Great Plains if
that what they would the the swank case
in the supreme court said they cannot regulate prairie potholes
but what they say is if you look at all the prairie potholes in the Great Plains
and
all the prairie potholes in the great lane great plains are significant
would have a cig then we can regulate any prairie pothole
in your backyard except for ornamental ponds that are on
%uh plans which has %uh particular legal
contact that that doesn't make it %uh
doesn't make it very a meaningful up the problem with that
interpretation at the statue is of course
that it violates other parts the statute that says most waters are to be
regulated by the state and EPA and Army Corps
think about the army course basic duty on navigation is to keep
navigable rivers open to keep navigable rivers open
that's the only authority so this rule that
let or this israeli-p_l_o_ yeah he is supposed to protect the environment
well our mental Protection Agency correct white why would you not want the
environment protected
in in this Act well the state sir doing a great job and being frustrated in
their efforts
but to protect the environment but the bigger they're pretty pretty a fact I i
when we were two of the ranch now used on a budget land in vermont we had a
us swamp land a upon a river that ran through it and
boy was the state all over us assured state that thats
that might point the state's do take but I think it actually got the right idea
in
my river and my swamp and my poon was down river from somebody else's and if
that guy decided that he was gonna dump 50 50 50 gallons a benzene
you know like Koch Industries has been doing I guess that's their new thing
with Flint Hills
um you know it's going to end up in my pen by heart that's what congress is
declared in the Clean Water Act that
most water said to be regulated by the states and certain water said to be
regulated by EPA
and EPA would stick to doing but it supposed to do
and not interfere with property owners are we listening not supposed to be
it a GOP your year as a property owner your
individual liberty ends when the water runs off your property into my property
I mean is that a very well I i'm not on my right fire that he and at the end of
your nose
%uh from what I hear from you your theory is if if there's anything I don't
like it's the federal government's
authority regulate but again the federal
government doesn't have constitutional authority but is particularly in this
act EPA in the Army Corps only have authority
to regulate navigable waterways not things that might
eventually a fact navigable waterways they can only
regulate their discharges into navigable waterway
that's the Army Corps that's not the environment nocache they have
that Co extent that the same jurisdiction the same
the same clausen Clean Water Act applies to both
then we can agree that we need to change the statute and I'll say we need to make
a
more strict in your gonna say we need to make it or less strict
I what what I I i think thats original 1974 interpretation
is just is just fine with me on but even if we wanted to go
a little further them what you want we would have to be mindful of our
constitutional limits on the federal government yeah
is this is this not I mean all the Sturm and Drang about the new EPA rule
is not being driven by basically polluting industries but not at all its
being being the great concern is from thousands of farmers
those are the people the Pacific Legal Foundation attends tu
the referees are most gruesome we have %ah we have a member coach about our
clients who have that
dry we're okay we're just trying to pick track for
have their dryer or a there there's another farmer I'm gonna got a raft yeah
excellent
you're listening to the Thom Hartmann program
visit Thom Hartmann dot com for audio and video archive got Ciano executive
director Pacific legal foundations Washington DC up a specific legal doc
work thank you
thank youthanks got back to top