Durk & Sandy Say No

The Durk Pearson & Sandy Shaw®
Life Extension NewsTM
Volume 6 No. 2 • April–May 2003

Durk & Sandy Say No: EPA Deciding Whether It Can Regulate the Puddle in Your Backyard as “Waters of the United States”

Another issue that has taken up much of our time has been our personally researching, writing, and filing public comments on the issue of whether the EPA and the Army Corps of Engineers can regulate bodies of water entirely intrastate with no connection with “navigable waters” (the original basis for being a “water of the United States”) and with only small or no effects upon interstate commerce. In preparation for this, we read several recent U.S. Supreme Court decisions, including especially U.S. v. Lopez (1995), U.S. v. Morrison (2000), and Solid Waste Agency v. Army Corps of Engineers, No. 99-1178.

The problem with the EPA or the Army Corps of Engineers or any federal agency regulating intrastate waters is that, under our federal system, ownership and use of intrastate water is to be regulated by the states. The above U.S. Supreme Court cases clarify under what conditions the federal government may regulate intrastate bodies of water under the Commerce Clause (which authorizes the federal government to regulate trade between the states) and makes it clear that it may do so only when there is a “significant effect” on interstate commerce. That leaves a great deal of water that the feds cannot touch under the Commerce Clause, the supposed justification in Solid Waste Agency for regulating entirely intrastate wetlands, swamps, ponds, puddles, intermittently wet places, and even (in the case of Solid Waste Agency) an abandoned gravel pit. Yes, the federals would like to command and control everybody who owns a creek, spring, pond, or (yes) abandoned gravel pit, but fortunately the Constitution’s Commerce Clause and the U.S. Supreme Court’s rulings on it do provide limitations to how far they can go. Sorry, we have no Web site at present that we can direct you to read and download our 23 pages and one exhibit of comments.

Why bother? As we have mentioned before, when you provide public comments in response to an agency’s Federal Register request for comments on rules and regulations, you can go directly to the federal courts if the agency doesn’t deal with your objections rather than having to “exhaust your administrative remedies” by appearing before the administrative courts (where the “judges” are paid by the agency and any fines these “judges” impose are received by the agency—talk about a conflict of interest!)—you could spend millions and never get anywhere. (Note: no Pearson & Shaw Litigation Fund money was spent on this.)

The constitutionality of federal regulatory agencies

Recently the California Coastal Commission was declared unconstitutional by the California Supreme Court because it was in violation of the separation of powers—the legislature established it and the executive branch was supposed to execute it, but the legislature was controlling the members. We have long thought that the so-called “independent” agencies established by Congress (such as the FDA and EPA) that are supposed to be part of the executive branch are in violation of the separation of powers (and, hence, unconstitutional) because they exercise executive, judiciary, as well as some legislative powers (owing to the wide discretion given them by Congress). This is not the sort of thing that is likely to be overturned anytime soon, but we have read that Justice Scalia believes that federal agencies like the FDA are unconstitutional. We hope to live a long time, and in that time we will be watching vigilantly for any opportunity to bring this issue to the fore and to help make mincemeat of these unconstitutional agencies.

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