Land And Water U.S.A.

Sunday, February 28, 2016


Economic Literacy 101
Do millennials really want the Big Government socialist policies Bernie and Hillary advocate?
Paul Driessen          
America’s 18- to 34-year-old “millennials” have been tutored in group-think schools that extol socialism. Now they lionize liberal politicians whose class-warfare prescriptions include taxing away all but maybe 1% of the nation’s 0.0001% billionaires’ wealth, then going after Wall Street, Big Business, millionaires and upper middle classes – and giving the “revenue” to those who “need” or “deserve” it more.
The entire process revolves around three central questions. Which ruling class elites get to determine who loses, who wins, by how much? Who grants them the power to do so, and holds them accountable? And what happens when the inevitable discontent over their autocratic decisions boils over?
Interestingly, many of the same generation have flocked to see films that glorify individual liberty and defiance of centralized government control. In The Hunger Games, a few small gestures of disobedience grew into a revolution against Capital elites who lived well and ruled imperiously, while subjugated masses in the Districts starved in poverty and sent their children to die in televised “hunting games.”
In Divergent, a Faction system preserves a society that primarily benefits the ruling Erudites by stifling individuality. The heroes and heroines refuse to confine their lives and ambitions to only one of the other four factions in which they were placed at age sixteen. Again, the ruling class lives far better than the ruled masses. (Ponder the politicians, bureaucrats and lobbyists in counties around Washington, DC.)
Are so many millennials really willing to let ruling classes confiscate wealth, impose penalties, determine appropriate welfare payments, and dole out favors? Has their “education” made them incapable of understanding the blessings of liberty, free enterprise capitalism, reliable and affordable fossil fuel energy, and entrepreneurial opportunities? Have instructors so brilliantly presented socialism through rose-colored glasses that young voters are blissfully unaware of its abject failures and horrid excesses?
Are millennials perhaps a little schizophrenic – loving liberty in theory and celluloid, but content to live reality in the Districts, among the Amity and Abnegation Factions, enjoying the bread and circuses (welfare payments and show trials for humbled banker and corporate bigwigs) bestowed upon them? Or perhaps they assume they will be among the Capital’s Erudite and Candor classes, governing the rest of America, in the name of justice, fairness, diversity and equality?
They seem to view free or low-cost college tuition, child care, healthcare, food and housing – along with $15-per-hour “living wages” for entry-level jobs … six-figure incomes after college … and “safe zones” – as “basic constitutional rights.” But when they “feel the Bern,” have they pondered how this system must necessarily work in the Real World, where they will feel the actual burn?
As the late Southern Baptist pastor and author Adrian Pierce Rogers succinctly explained, the hard reality is that “government cannot give anything to anybody that it doesn’t first take from somebody else. What one person receives without working for another person must work for without receiving.”
That is precisely what Senator Sanders’ wealth taxation and redistribution scheme proposes to do. The problem, as former British Prime Minister Margaret Thatcher astutely observed, “is that eventually you run out of other people’s money.” Even in the wealthy United States, “eventually” would come quickly, because socialism destroys the incentive to work, innovate, invest, take risks and create new wealth.
Ultimately, nations are left with a large and growing population of have-nots who demand more – when there is no “more” to be had. That is what Italy, Greece, Portugal, Spain, Argentina, Brazil, Cuba, Venezuela and other socialist, populist, egalitarian paradises have been discovering.
They used to provide all kinds of free stuff. Today they are basket cases – struggling with anemic growth, recession, bankruptcy and government “junk” bonds that no sane investor wants.
Today, 59% of young Greeks are unemployed. Youth unemployment is 56% in Spain, 42% in Italy, 38% in Portugal. In Brazil, electricity rates soared 51% last year, food prices rose 15% and overall inflation stood at 11% – a vast improvement over its 5000% annual inflation rate (!) in the early 1990s but still awful. In all of Latin America, only Argentina at 27% and Venezuela at 200% had worse inflation.
American students are immersed in “sustainability” studies and projects, mostly based on still persistent notions that we are running out of essential resources and destroying Planet Earth. Those ideas are the foundation of policies and regulations that perpetuate what really is unsustainable: unemployment, government spending, anti-growth policies, and the anger and unrest they cause.
It may be, as Winston Churchill once observed, that “the inherent vice of capitalism is the unequal sharing of its blessings.” However, he continued, “the inherent blessing of socialism is the equal sharing of misery and scarcity.” Unfortunately, simple, basic truths like this are rarely taught in our schools.
Students today want equality of outcomes, rather than of opportunities that yield positive outcomes and potentially rich rewards by dint of hard work. If millennials applied their socialist principle to grades – with all scores on exams and projects averaged out among the smart and less talented, the hard-working and deadbeat – shiftless classmates would be happy to coast along, once ambitious scholars would exert far less effort, and all would soon flounder in a sea of F’s.
Similarly, socialist policies stifle the innovation, economic growth and job creation that young people need if they are to get beyond minimum-wage service jobs, and out of their parents’ basements.
Free tuition? City University of New York had that for awhile, until 1976, when it ran out of money and the city nearly went bankrupt. Even Sanders admits his plan would cost yet another $750 billion over ten years. But perhaps it would work if half of the administrative positions were eliminated, faculty salaries got a 25 or 35% trimming, and sabbaticals came just once a decade.
Surely the “progressives” who rule our campuses – and try to ban and silence contrarian speakers like Ben Shapiro – would support this to ensure “free stuff.” Surely, the next Erudite and Candor egalitarians in The Capital would be content with salaries that are no higher than those of the masses they govern.
Bottom line, the bills must eventually be paid. Millennials may get free stuff today. But they and their children and grandchildren will pay for their freebies many times over, through higher taxes, increasing control over their lives, higher inflation, fewer jobs at reduced salaries, and lower living standards.
As to accountability, government excels at fining and jailing citizens and businessmen for violating any of the thousands of regulations that carry criminal sanctions, even if the “perpetrator” did not intend to violate the rule or had no clue that such a rule could possibly exist. But the ruling elites apply very different standards when the incompetent or criminal actions of their own agents are involved.
Thus a rancher is prosecuted for “terrorism” for accidentally burning 139 acres of national forests, but government officials get off scot-free when they torch 160,000 acres mere miles away. Citizens go to prison for inadvertently “impacting” wetlands, but EPA bureaucrats receive get a pass cards when they deliberately open an abandoned mine and unleash 3,000,000 gallons of toxic sludge. IRS directors simply “take the Fifth” after targeting conservatives and destroying records, and an OPM director resigns rather than testify about how her screw-ups let hackers get personnel records – while private citizens are hounded and threatened until they cave in or run out of money to defend themselves.
The more government control and socialist wealth redistribution we get, the worse these abuses become. Will the socialist voters demand accountability? Or do they simply not care when ruling elites and their cronies violate laws and abuse their public trust, to advance agendas or enrich and protect themselves?
All these questions would generate very interesting discussions with socialist candidates and voters.
Paul Driessen is senior policy analyst for the Committee For A Constructive Tomorrow ( and author of Eco-Imperialism: Green power - Black death.

Thursday, February 25, 2016


Wyoming Legislator Frugality Scorecard 
Shows Mixed Performance 

CHEYENNE, WY - The Wyoming Liberty Group released the Wyoming Budget Frugality Scorecard today, which measures whether Wyoming legislators voted to increase or decrease the general appropriations budget through the budget amendment process. A Frugality Score measures the willingness of legislators to increase or decrease Wyoming's deficit.
"Wyoming legislators are already raiding the rainy day fund for the operational budget so we wanted to know which legislators would vote for an even bigger raid," said Maureen Bader, WyLiberty economist and study lead. "Medicaid expansion in the Senate and the lack of roll call votes on amendments that failed in the House make for some interesting results that voters can ask their representatives and senators about." 
To create the Budget Frugality Scorecard, Wyoming Liberty Group analysed second and third reading amendments that either increased or decreased general fund appropriations and that had a roll call vote. Each legislator in both the Senate and House received a score.
Frugality was measured two ways. First on the percentage of roll call votes on amendments that affected the proposed budget's general fund appropriation and second, on the percentage of dollars voted on that affected the general fund appropriation. A perfect 100 percent score means a legislator voted for a decrease or against an increase 100 percent of the time and on 100 percent of the dollars. A zero percent score means a legislator voted for a decrease or against an increase zero percent of the time and on zero percent of the dollars. No legislator received a 100 percent or zero percent score.
 "The formulation of the Medicaid expansion amendment in the Senate shows why we needed two types of measurement. Even though evidence from other states shows that its short-and-long-term consequences are budget busting, a vote against Medicaid expansion meant many Senators fell in the ranking," said Bader. "Different rules in the House meant only one failed amendment had a roll call vote, making it difficult to get a broad picture of legislator voting behavior."
The Senate results fell below those in the House, with only one senator, Cale Case, voting frugally more than 80 percent of the time on 80 percent of the dollars. While in the House, seven representatives voted frugally on 90 percent of the dollars but only one of those, Kendall Kroeker, voted frugally more than 90 percent of the time.
All the Democrats sat at the bottom of the list on the House side and one Republican sat below all the Democrats on the list on the Senate side.  No legislator scored frugally zero percent of the time or on zero percent of the dollars. 
"As state revenues continue to plummet, many legislators appear willing to dip into the rainy day fund to maintain elevated spending levels," said Bader. "Wyoming taxpayers face the specter of depleted savings and higher taxes unless true political will for government reform appears." 


Please click here for the House and Senate Scorecards.
For more information, please call
Maureen Bader, Economist and Study Lead
Wyoming Liberty Group

The Wyoming Liberty Group is a 501(c)(3) nonprofit, nonpartisan research organization.  The Group's mission is to prepare citizens for informed, active and confident involvement in local and state government and to provide a venue for understanding public issues in light of constitutional principles and government accountability. 

EPA Army Corps Trick or Truth?

Trick or Truth? What EPA and the Corps of Engineers Are Not

Saying About Their “Waters of the U.S.” Proposal
Provided by the American Farm Bureau Federation October 30, 2014

Last month, EPA and the U.S. Army Corps of Engineers issued some “Questions and Answers” about their proposed rule defining “navigable waters” or “waters of the United States” under the Clean Water Act. But the agencies’ Q&A doesn’t give straight, reliable answers to the questions posed. Instead, it omits or even misstates key information about the proposed rule and its true impacts on farmers and ranchers, builders, local governments, and countless others. 

The purpose of this document is to provide the real “answers”—the truth that the public deserves about the proposed rule. We don’t mention each and every inaccuracy in the Q&A. But we do provide detailed answers to some of the most important questions, with citations to the proposed rule and other resources. If you’re not sure who’s telling the truth, please read the fine print (79 Fed. Reg. 22,188-274 (Apr. 21, 2014)). Then tell EPA and the Corps to Ditch the Rule. 

Is the proposal an expansion of jurisdiction?  

Agencies say: No. From the Clean Water Act’s enactment, its scope of jurisdiction, included any waterbody that had a connection with interstate commerce. The Supreme Court narrowed jurisdiction by focusing on a more technical and scientific understanding of water features and their connections to downstream traditional navigable waters. This new focus narrowed the scope of the Clean Water Act but placed certain waters in a gray area, where case-specific determinations were required. This gray area creates uncertainty, litigation risk for some land owners, and inconsistent application of the CWA. The proposed rule clearly applies the “significant nexus” test as contemplated by Justice Kennedy. It also reduces litigation risk by reducing the amount of waters in this gray area. 


Yes, the proposal would dramatically increase the number of so-called “waters” (which don’t really look like water) that are subject to CWA jurisdiction. That’s why the agencies so desperately want this rule! (Agencies don’t fight so hard to achieve “clarity.”)

The Clean Water Act has never been as broad as what the agencies now propose. It’s true that the agencies’ own historical regulations were very broad (any connection with interstate commerce). But those rules were also illegal. The Supreme Court found (twice, in 2001 and 2006) that those rules went far beyond what Congress ever intended.[1] The nation’s highest court—which has the job of interpreting federal laws—found that Congress always intended to focus on “navigable waters” plus waters that have a substantial connection to those waters, like wetlands adjacent to navigable waters. 

Because of these Court decisions, today the Corps and EPA cannot assert jurisdiction over nonnavigable waters unless they find that a particular feature has a “significant nexus” to actual navigable waters.[2] The agencies’ current guidance says that requires consideration of the volume, duration, and frequency of flow in the non-navigable water, as well as proximity to downstream navigable waters.[3] As a result, today very few so-called “ephemeral streams” (that flow only when it rains), ditches, or isolated wetlands (not adjacent to navigable waters) have ever been subjected to Clean Water Act jurisdiction.[4]  

The proposed rule would get rid of the need for case-by-case determinations—and dramatically expand Clean Water Act jurisdiction—by making a categorical finding that certain types of features have a “significant nexus.”[5] The categories of regulated features are very broad. For example, they would cover “ephemeral streams” even if they are rarely wet, so long as water sometimes flows there that ultimately reaches navigable waters (even miles away). (See below in the section about “tributaries”.) They would also cover even the smallest “wetland” or other water (pond) so long as it is located in a floodplain (without saying how big a flood) or in a “riparian area.”

If a water on my property is jurisdictional, does that mean the federal government controls my use of the water? 


Agencies say: No. CWA permitting only applies where someone proposes to dump waste or other pollutants into the nation’s streams, rivers, lakes, and wetlands. These are waters where communities get their drinking water, where families swim and boat, and where fish are caught for recreation and for sale to markets and restaurants. If you’re not polluting these water bodies, you don’t need any sort of permit. Also, normal farming practices that involve dredged or fill material, regardless of jurisdiction, do not need a permit, since the law permanently excludes those practices.


Yes! If a feature on your property is jurisdictional (remember, it may not even look like “water” most of the time), you will be generally prohibited from doing anything that causes “pollutants” (including dirt, dust, “biological materials” or chemicals) to fall or be placed into that feature from any “conveyance” (which could be a nozzle, shovel, plow or most anything else). The Clean Water Act protects “waters of the United States” by completely prohibiting the “discharge of any pollutant” into those features, except where the discharge is authorized under a permit or under another provision of the statute.[6] Activities don’t have to look like “dumping waste” to be prohibited, and they don’t have to result in any actual environmental harm—they just have to cause some amount (even a very small amount) of “pollutant” to fall or be placed into a jurisdictional “water.”[7] Also, the ban on discharges continues year round, even if the protected feature only contains water for a few days or in certain seasons. 

There is no “right” to a Clean Water Act permit, even if your livelihood depends on doing something that may cause “pollutant” (like fertilizer, dirt, or herbicide) to fall into jurisdictional features.[8] The Corps or EPA can take years to issue a permit, or they can decide not to issue one at all. Just the process of applying for a permit can be very burdensome, costing tens of thousands of dollars in consultant and legal fees.[9] 

It is true that moving dirt in a jurisdictional feature is sometimes exempt from section 404

(“dredged or fill material”) permitting, if it is part of “normal” farming or ranching activities.[10]

But the agencies’ Q&A fails to mention that they have severely limited what they consider “normal.” For example, activities are only “normal” (according to the agencies) if they are part of an “established (i.e. on-going)” farming or ranching operation at that location, not a new operation.[11] Because that agency interpretation came out in 1977, the agencies have taken the position that new operations require a section 404 permit unless they have been “ongoing” since 1977.[12] In private meetings, EPA officials have admitted that farming that has not been ongoing since 1977 (e.g. plowing across a jurisdictional ephemeral drain) would require a section 404 permit—but “only for the first year” (after that, it would be an “established” operation).[13] 

Another limit on the “normal” farming exemption is the so-called “recapture” provision. Under this provision, a permit is required if “normal” farming or ranching activity is intended to bring a jurisdictional feature into a new use, “where the flow or circulation of [the jurisdictional water] may be impaired or the reach of such waters be reduced.” 33 U.S.C. § 1344(f)(2) (CWA

§[14] 404(f)(2)). Because the proposed rule would assert jurisdiction over very small “waters” it may not take much to “impair” the flow or reach of those features. In fact, the proposed rule suggests that a farmer would be in violation of the law if farming across an ephemeral drain caused the “bed and bank” of that feature to disappear (e.g. smoothing out a natural channel in the land).14 Likewise, impounding a jurisdictional ephemeral drain or small wetland (to build a farm pond, for example) would be “recaptured” and would not be exempt. 

Third, the normal farming exemption only applies to dredge and fill activities authorized under section 404, such as plowing and moving dirt. It does not apply to “discharges” of other materials, like fertilizer or pesticides that may fall into farmed ephemeral drains or wetlands or nearby ditches. If any amount of these materials is applied into, or falls into, jurisdictional features as part of ordinary farming activity, the farmer will be in violation of the Clean Water Act unless he or she has obtained a Clean Water Act section 402 discharge permit.[15] Again, this is true even if the feature is not carrying water at the time fertilizer or pesticide is being applied. 

Finally, the agencies’ Q&A fails to mention their new “interpretive rule” that says the “normal” farming exemption applies only to practices that comply with Natural Resources Conservation Service (NRCS) technical standards.[16] So, if you want to build a fence across a jurisdictional ephemeral drain, ditch or wetland, and if you’ve had “ongoing” farming or ranching there since 1977, and if you comply with NRCS technical standards for fence building, your fence-building may be exempt from section 404 permitting. That’s not quite as broad an exemption as the agencies seem to want the public to believe. 
[1] See U.S. v. Cumberland Farms of Connecticut, Inc., 647 F. Supp. 1166 (D. Mass. 1986), affirmed 826 F.2d 1151 (1st Cir. 1987), cert. denied, 484 U.S. 1061 (1988).
[1] See Letter from Craig Hill, President, Iowa Farm Bureau, to Ken Kopocis, Deputy Assistant
Administrator, U.S. EPA Office of Water (Sept. 29, 2014) ( #!documentDetail;D=EPA-HQ-OW-2011-0880-7633).
[1] Fed. Reg. at 22,204.
[1] See National Cotton Council v. EPA, 553 F.3d 927 (6th Cir. 2009); Waterkeeper Alliance v. EPA F.3d 486 (2nd Cir. 2005).
[1] See U.S. Environmental Protection Agency and U.S. Department of the Army Interpretive Rule Regarding the Applicability of Clean Water Act Section 404(f)(1)(A) (March 25, 2014).


This proposed rule includes seasonal and rain dependent streams when they meet the definition of a tributary. Would the water that flows on my land only after a rainstorm now become jurisdictional? 


Agencies say: Rainwater that flows on top of the land, sometimes referred to as sheetflow, or through an erosion feature is not jurisdictional under the CWA. The proposed rule would only cover features that have a bed and bank and ordinary high water mark. These features take years to develop. An erosion feature is not jurisdictional because it does not have these characteristics.

Thus, the proposed rule specifically excludes erosional features, such as gullies.


Again, the answer is “Yes!” Water that flows on land only after a rainstorm absolutely will be regulated under the proposed rule. Here’s how:

The rule would define “tributaries” to include landscape features where rainwater channels, as long as the flowing water leaves a mark on the land, and so long as some water from the feature sometimes makes its way to a navigable water (no matter how far away).17 The agencies use the words “bed” and “bank” and “ordinary high water mark,” which sound like parts of a river or stream. In reality, though, the agencies’ explanation makes clear that those words just mean some kind of channel (land with higher elevation on each side of land with a lower elevation) plus any physical marks left by flowing water.18 

Below is a photo of one feature in Tennessee where the Corps of Engineers actually found a bed, bank and ordinary high water mark. The agencies see features like this as “waters” (“ephemeral streams” or “tributaries”) even though they are dry except when it rains. When water flows in these features, the agencies don’t see that as water flowing across the land, they see it as water flowing in streams. That’s why EPA and the Corps say (with a straight face) that they are not proposing to regulate “rainwater that flows on top of the land.” But to most people, this is land.

17                             79 Fed. Reg. at 22,202 (the water may contribute flow directly or may contribute flow to another water or waters which eventually flow into [downstream navigable waters]).                 

18                             The agencies explain: “A tributary is a longitudinal surface feature that results from directional surface water movement and sediment dynamics demonstrated by the presence of bed and banks, bottom and lateral boundaries, or other indicators of [ordinary high water mark]…. in some regions of the country where there is a very low gradient, the banks of a tributary may be very low or may even disappear at times.” 79 Fed. Reg. at 22,202. Translation: the proposed rule will regulate activities on land where water channels and flows when it rains, so long as the flowing water leaves a mark on the land. The “channel” may be so subtle that you can’t really see it.

When the agencies say they are not planning to regulate “sheet flow,” that just means they will not regulate water that flows with no channel—where water flows evenly dispersed across the land surface.[17] When they say they are not planning to regulate “erosional features,” the agencies seem to mean that they will not regulate places where the soil has eroded but there is no bed, bank and ordinary high water mark. Given how easy it is to find a bed, bank and ordinary high water mark (see above), many areas where soil has eroded will be viewed as “ephemeral tributaries” and not as “erosional features.” Even the agencies seem to recognize that it can be very difficult to tell the difference between the two.[18]  

Would the proposed rule protect, as tributaries, all “channels” regardless of how often they flow or how much water they carry? 


Agencies say: No. The agencies proposed, consistent with the Supreme Court decisions, to protect those flowing waters that significantly affect downstream navigable waters. Simply establishing a connection does not mean that the connection creates the required significant effect. The agencies have defined tributaries based on physical indicators of flow – bed and banks and ordinary high water mark – and many “channels” will not meet this definition. The agencies are eager to review public comments on the proposed rule to ensure that the definition of tributary is clear and reflects this.



Look closely for the trick in this “question.” It’s true that the proposed rule would not regulate each and every “channel.” But it would regulate each and every “tributary” (as newly defined) regardless of how often they flow or how much water they carry. All that’s needed is enough water flow to leave a mark (see photo above), plus any amount of flow that ever reaches a navigable water (no matter how far away). Any channel like that will be automatically regulated as a “tributary.” 

If you’ll pardon the bureaucratic jargon, we will quote the agencies’ explanation:

To meet this definition, a water need not contribute flow directly to [downstream navigable waters]. As the definition makes clear, the water may contribute flow directly or may contribute flow to another water or waters which eventually flow into

[downstream navigable waters]… Under the proposed definition of tributary, the upper limit of a tributary is established where the channel begins. 


79 Fed. Reg. at 22,202. The agencies go on to say:

[1] See Greening EPA; Stormwater Management Best Practices ( stormwater/best_practices.htm) (discussing the benefits of eliminating curbs and gutters to increase sheet flow).
[1] See 79 Fed. Reg. at 22,219 (“agencies request comment on how they could provide greater clarity on how to distinguish between erosional features such as gullies, which are excluded from jurisdiction, and ephemeral tributaries, which are categorically jurisdictional”).

Tributaries that are small, flow infrequently, or are a substantial distance from the nearest [traditional navigable water] (e.g., headwater perennial, intermittent, and ephemeral tributaries) are essential components of the tributary network…. 

79 Fed. Reg. at 22,206.[19] Tricky, huh?

Do I need a CWA permit when I am applying pesticides or herbicides to any farm fields? 


Agencies say:     No. A permit is only needed when pesticides are applied to waters that are jurisdictional. For example, if wetlands protected under the CWA are being farmed, activities such as plowing, seeding, and harvesting do not require a CWA permit. Applying pesticides or herbicides in jurisdictional wetlands, however, would generally require a permit, and may be satisfied by a general permit. In addition, neither agricultural stormwater nor return flows from irrigation need permits.


This is an especially tricky answer, because it begins with a quick “no”, but if you keep reading, the answer is “yes”! The truth is that many farm fields include features that will be “navigable waters” under the proposed rule, such as ephemeral drainage paths (“ephemeral tributaries”) and low spots (wetlands). To the farmer, these features look like land, and they may be dry except when it rains (again, see the photo above). But under the proposed rule, many of these features will be “jurisdictional waters,” and any application of pesticide there—or even fertilizer—would require a Clean Water Act permit. That means putting any amount of pesticide (or fertilizer) onto these features—right in the middle of a farm field—without a permit would be an illegal “discharge” with penalties of up to $37,500 per violation, per day, even at times when the protected “water” contains no water.[20] It’s no wonder the agencies don’t like to say that! 

The agencies say that a general permit “may” satisfy the pesticide permit requirement, and that’s technically true: A “general permit” for pesticide use may, but may not, be available, depending on the state. In many states, coverage under the pesticide general permit is limited to specific types of applications that would not include farm fields.[21] In addition, there is no general permit for fertilizer application. If no general permit is available for the farmer’s activities, he or she would have to seek an “individual” permit, which could take months or even years and many thousands of dollars in legal and consultant fees. 

[1] See Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 172 (2001) (SWANCC) and Rapanos v. United States, 547 U.S. 715 (2006).
[2] See Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. U.S. & Carabell v. U.S. (U.S. EPA and U.S. Army Corps of Engineers, Dec. 2, 2008).
[3] Id. at 10.
[4] Because most ditches, ephemeral streams, and isolated wetlands are not jurisdictional, you can mow grass, spray for weeds, or dig a fence post in them without a Clean Water Act permit. If activity in or around those features affects the quality of downstream waters, those effects are addressed through a variety of non-regulatory programs that give the states more power to decide how to protect water quality. 33 U.S.C. § 1288 (area-wide waste treatment management), § 1313(d) (water quality standards and total maximum daily loads), § 1313(e) (continuing planning process), § 1329 (non-point source management programs), § 1341 (water quality certification) to name a few.
[5] “This will eliminate the need to make a case specific significant nexus determination for tributaries or for their adjacent waters because it has been determined that as a category, these waters have a significant nexus and thus are ‘waters of the United States.’” 79 Fed. Reg. at 22,193.
[6] See 33 U.S.C. §§ 1311(a), 1362(12) (CWA §§ 301(a), 502(12)).
[7] See Sierra Club v. Union Oil, 813 F.2d 1480, 1490-91 (9th Cir. 1987), vacated other grounds, 485 U.S. 931 (1988), judgment reinstated, 853 F.2d 667 (9th Cir.1988) (“The Clean Water Act and the regulations promulgated under it make no provision for ‘rare’ violations’”); U.S. v. Aluminum Co. of Am., 824 F. Supp. 640, 649 (E.D. Tex.1993) (“ [a] violation is a violation no matter how statistically insignificant”); Int’l Union v. Amerace Corp., Inc., 740 F. Supp. 1072, 1083 (D.N.J. 1990) ( “The Clean Water Act recognizes neither a good faith nor a de minimis defense.”)
[8] See 33 U.S.C. §§ 1342(a(1), 1344(a)  (CWA §§ 402(a)(1), 404(a)) (agency “may” issue a permit); Mingo Logan Coal Co. v. EPA, 714 F.3d. 608 (D.C. Cir. 2013). 
[9] EPA’s own figures (adjusted for inflation) put the cost of individual section 404 permit application at $62,166, plus $16,787 per acre of impacts to “waters of the U.S.” For nationwide permits, costs are estimated at $24,004, plus $13,212 per acre of “waters of the U.S.” affected.
[10] See 33 U.S.C. § 1344(f) (CWA § 404(f)).
[11] See 33 C.F.R. § 323.4(a)(1)(ii); 40 C.F.R. § 232.3(c)(1)(ii)(A).
[12] See U.S. v. Cumberland Farms of Connecticut, Inc., 647 F. Supp. 1166 (D. Mass. 1986), affirmed 826 F.2d 1151 (1st Cir. 1987), cert. denied, 484 U.S. 1061 (1988).
[13] See Letter from Craig Hill, President, Iowa Farm Bureau, to Ken Kopocis, Deputy Assistant
Administrator, U.S. EPA Office of Water (Sept. 29, 2014) ( #!documentDetail;D=EPA-HQ-OW-2011-0880-7633).
[14] Fed. Reg. at 22,204.
[15] See National Cotton Council v. EPA, 553 F.3d 927 (6th Cir. 2009); Waterkeeper Alliance v. EPA F.3d 486 (2nd Cir. 2005).
[16] See U.S. Environmental Protection Agency and U.S. Department of the Army Interpretive Rule Regarding the Applicability of Clean Water Act Section 404(f)(1)(A) (March 25, 2014).
[17] See Greening EPA; Stormwater Management Best Practices ( stormwater/best_practices.htm) (discussing the benefits of eliminating curbs and gutters to increase sheet flow).
[18] See 79 Fed. Reg. at 22,219 (“agencies request comment on how they could provide greater clarity on how to distinguish between erosional features such as gullies, which are excluded from jurisdiction, and ephemeral tributaries, which are categorically jurisdictional”).
[19] Even Justice Kennedy criticized the agencies for their previous attempts to use “ordinary high water mark” to define “tributaries.” He commented that the term is so broad it would result in regulation of ditches and ephemeral streams that are remote from truly navigable waters and carry only minor volumes of water. Rapanos v. United States, 547 U.S. 715, 781 (2006) (J. Kennedy, concurring in the judgment).
[20] See Pesticide General Permit (PGP) for Discharges from the Application of Pesticides (U.S. EPA 2011) at A-8 (“Delineated Waters of the United States may or may not be wet at the time of discharge; however, discharges to such are still considered discharges to Waters of the United States.”)
[21] See Generic Permit for Pollutant Discharges to Surface Waters of the State from the Application of Pesticides (Florida Department of Environmental Protection, 2011) ( wastewater/iw/docs/62-621.300_8e.pdf).
would have to seek an “individual” permit, which could take months or even years and many thousands of dollars in legal and consultant fees. 

Sunday, February 21, 2016


Remember the Climate!
Obama orders Pentagon, generals and admirals to make climate change Job One 
By Paul Driessen
Military triumphs and catastrophes have often hinged on how well (or luckily) armies and navies employed, avoided or benefited from weather and other natural events.
Severe storms helped the British navy defeat Spain’s Armada in 1588. George Washington knew horrid weather meant the Hessians would not expect an attack across the Delaware River on Christmas 1776.
Napoleon captured Moscow before leading his Grande Armée’s exhausted, starving, freezing remnants back to France through a bitter 1812 Russian winter. Hitler’s army never even reached Moscow; it was decimated by disease, starvation, bullets and frigid cold at Stalingrad 140 years later.
Eisenhower’s Normandy invasion plans anticipated a full moon that would illuminate bomber targets and bring low tides to expose German mines and obstacles along the beaches. Instead, overcast skies limited Allied air support – but persuaded the Nazi high command that no invasion would occur for several days. So senior officers stayed in Germany, leaving their army unprepared for D-Day, June 6, 1944.
Throughout history, commanders discovered that trying to predict the weather – or their enemies’ resolve – was fraught with peril. Even today, accurate weather forecasting is a highly uncertain science, even a few days in advance, especially for hurricanes or winter blizzards in Mid-Atlantic states where winds, storm tracks, temperatures and moisture are affected by the Atlantic Ocean, Gulf of Mexico and Arctic.
But now President Obama wants to compound his social experimentation with the military, by ordering the Pentagon brass to focus not on imminent weather events surrounding battle plans – not on threats from China, Russia, Iran, North Korea, ISIL, Hamas and other real hot spots – but on climate change years or decades in the future. He wants to replace Remember the Alamo with Remember the Climate!
Mr. Obama has issued an executive order directing the Department of Defense (and all other federal government agencies) to make preparing for global warming impacts a top priority, and treat climate change as our most serious national security threat. He even warned 2015 Coast Guard Academy graduates that “denying” climate change is a “dereliction of duty.” You can’t make this stuff up.
The EO directs the Pentagon to order all military commanders, down to battle planning levels, to include climate change analyses in combat planning, training exercises, intelligence gathering, weapons testing and procurement, fuel types and use, and practically every other aspect of military operations. This could include restrictions on the type and duration of training flights, amphibious landings and tank maneuvers.
It is sheer lunacy. It means bureaucrats and new layers of armed forces bureaucracies will waste time and money, and ignore real weapons and training issues. It means soldiers and sailors must now focus less on real natural and humanitarian disasters, and more on “climate refugee crises” that exist only in computer models, ivory tower studies and White House press releases. It could affect combat readiness and morale, make our warriors less prepared for warfare, and put them at greater risk of injury and death.
Other Obama orders forced the Air Force to spend $59 a gallon for “renewable” jet fuel and $67 per gallon for camelina-based F-22 Raptor fuel – and the Navy to spend $27 per gallon for biofuels from algae, waste grease and animal fat, and $424 a gallon for 20,000 gallons of “sustainable” diesel fuel. All that when conventional gasoline, diesel and jet fuel sell for $2.00-$3.50 per gallon (thanks to fracking)!
Like the other social experiments, this is being imposed by political operatives with little or no military service, few kids in the military, and minimal concern about how these policies, multiple deployments and stretched-to-the-breaking-point budgets might affect military readiness, morale, safety and families.
Even more absurd, the orders are based on pseudo-science and indefensible assumptions that carbon dioxide now drives climate change, and we have the knowledge and ability to predict climate shifts, extreme weather and related disasters years or decades in advance. Basing defense policies on these notions is ridiculous and dangerous. It’s like Eisenhower using tarot cards to predict Normandy weather.
The IPCC, EPA and White House continue to rely on still “murky” science, climatologist John Christy recently told the Senate Space and Science Subcommittee, “with large uncertainties on many crucial components, such as cloud distributions and surface heat exchanges.” This and other deficiencies cause predictions to be notoriously disconnected from Real World temperatures and weather events.
Contrary to those predictions, instead of rising a degree or more, average global temperatures have flat-lined for 19 years. Instead of more hurricanes, not a single category 3-5 hurricane has struck the U.S. mainland since November 2005 (a record ten-plus years). “Moisture conditions have not shown a tendency to have decreased (more drought) or increased (more large-scale wetness),” Dr. Christy noted.
Climate models still focus on manmade carbon dioxide and ignore most of the powerful, interconnected natural forces that have always driven climate and weather. In fact, “the theory of how climate changes, and the associated impact of extra greenhouse gases, is not understood well enough [for models] to even reproduce the past climate,” Dr. Christy explained to the House Science, Space and Technology Committee. There is no way they can forecast future climates, and they have failed to do so.
Climate models pay minimal attention to significant effects of land use changes and major high-impact fluctuations like the Pacific Decadal Oscillation (El Niño and La Niña) and North Atlantic Oscillation, University of Delaware climatology professor David Legates observes.
Adds Weatherbell forecaster Joe D’Aleo: they also disregard variations in the sun’s energy output; the important effects of the sun’s ultraviolet output, geomagnetic activity and cloud-enhancing cosmic rays; and the cyclical interplay of cold and warm water pools in our oceans, which significantly influence the severity of winters in Eurasia and North America (as just one example). All these factors affect weather and climate. They assume any warming is dangerous, rather than beneficial for people and agriculture.
Additional reasons for grossly deficient climate models are their “overly simplified and inadequate numerical techniques,” and the fact that decadal and century-scale circulation changes in the deep oceans “are very difficult to measure and are not yet well enough understood to be realistically included in the climate models,” says Colorado State University weather and hurricane analyst Bill Gray.
Reliable predictive capabilities require that we end our obsession with carbon dioxide as the primary driver of climate change – and devote far more attention to studying all the powerful forces that have always driven climate change, the roles they play, and the complex interactions among them.
And yet, Christy noted ruefully, “demonstrably deficient models are being used to make policy.” That has been disastrous for domestic sectors, like coal and manufacturing. It could be lethal for military forces.
One can easily imagine how Gilbert and Sullivan would treat this insanity in an updated HMS Pinafore:
Now landsmen all, whoever you may be,
If you want to be admirals at the DOD,
If your soul isn't fettered to the White House fools,
Be careful to be guided by this golden rule:
Heed the climate models and never go to sea,
And you all may be rulers of Obama’s Navee!
The revised D’Oyly Carte lyrics notwithstanding, Mr. Obama continues to use climate change to justify his drive to fundamentally transform our economy, society, military, and energy, legal and constitutional systems. Equally ominous, Hillary Clinton and Bernie Sanders share his obsession and objectives. 
The Joint Chiefs of Staff, Pentagon brass and line officers must battle these climate directives as forcefully as they would any of the real dangers that face our nation and world. So must we all.
Paul Driessen is senior policy analyst for the Committee For A Constructive Tomorrow ( and author of Eco-Imperialism: Green power - Black death.


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