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Classic Legal Struggle: Property vs. The State


Jeff Matthews

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I just read an interesting article on some changes going on within the EPA.  Wikipedia explains the legal concept of inverse condemnation:

 

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Inverse condemnation is a term used in the law to describe a situation in which the government takes private property but fails to pay the compensation required by the 5th Amendment of the Constitution, so the property's owner has to sue to obtain the required just compensation...

 

The taking can be physical (e.g., land seizure, flooding, retention of possession after a lease to the government expires, deprivation of access, removal of ground support) or it can be a regulatory taking (when regulations are so onerous that they make the regulated property unusable by its owner for any reasonable or economically viable purpose). The latter is the most controversial form of inverse condemnation. It can occur when the regulation of the property's use is so severe that it goes "too far," as Justice Holmes put it in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922), and deprives the owner of the property's value, utility or marketability, denying him or her the benefits of property ownership thus accomplishing a constitutionally forbidden de facto taking without compensation.

 

The article contains a few inflammatory jabs, showing the author's bias.  However, despite the bias, the essence of the struggle is adequately reported.  

 

It reveals the real-life gray area of when regulation becomes a compensable taking.  There is no way the government could afford to buy all the rights of every landowner whose property might occasion some intermittent ponding and puddling.  Yet, the environmentalists assert (perhaps correctly) that the lack of regulation exposes downstream owners to pollution, including contamination of public and private drinking water supplies.

 

Anyway, enjoy!

 

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Speaking at a press conference late Tuesday morning, Acting Environmental Protection Agency Administrator Andrew Wheeler called the 2015 Waters of the U.S. rule a “power grab.” The Trump administration’s proposal, he said, will replace the Obama-era regulation “with one that respects the rule of law” and “end years of uncertainty over where federal jurisdiction begins and ends.”

 

“Property owners should be able to stand on their property and be able to tell if they have water that is a federal water without having to hire outside professionals,” he said, drawing a round of applause. 

 

Waters of the U.S., also known as the WOTUS rule or the Clean Water Rule, explicitly defined which waterways were covered under the 1972 Clean Water Act, expanding federal protections to all “navigable” waters and securing the drinking water of more than 117 million Americans

 

 

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Farmers and industry groups challenged the Clean Water Rule, arguing it amounted to overreach that would impose costly changes to comply. A federal judge stayed the Clean Water Rule in 2015, and the rule has since bounced between courts. Last January, the Supreme Court sent the case back to a district court. But Pruitt, in the meantime, began the process of repealing the rule outright.

 

Pruitt hinted at the looming changes during a congressional hearing in April, saying WOTUS determinations have been so inconsistent, so different in certain parts of the country that ephemeral drainage ditches, dry creek beds, puddles, prairie potholes in North Dakota, you know, are considered waters of the United States, which I believe, looking at the text of the Clean Water Act, clearly was not within the intent of Congress.”

 

 

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Geoff Gisler, a senior attorney at the Southern Environmental Law Center and head of the environmental nonprofit’s Clean Water Program, told HuffPost the science is clear that wetlands and small streams are “the very best filters for our water.” The Trump administration’s proposal, he said, will likely have “catastrophic” impacts on drinking water. 

 

 

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Pollution for profit.  Sums up the current policy.  Pruning of public (citizen owned and protected) lands is another facet of this. (Department of the Interior).  Why the pruning?  Private profit, usually tied to the polluting "industry."  Picking winners from a governmental stance---nothing has changed here.  Only the hypocrisy grows.

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