Commentary: Martyrs to the Clean Water Act (August, 2017)

by John McClaughryJohn McClaughry

Among the most notable martyrs to the Clean Water Act are names that few recall:  Ocie and Corey Mills, John Pozsgai, John Rapanos, and most recently, John Duarte. All of them were dragged into years-long battles with the Federal government – notably the Army Corps of Engineers and the Environmental Protection Agency – over making their own land more productive.

Congress passed the Clean Water Act of 1972 to regulate actions that affect the “navigable waters of the United States”. The Connecticut River and Lake Champlain are clearly navigable waterways. Environmentalists would argue that Kirby Brook, which runs from Kirby Pond into the Moose River, then into the Passumpsic River, then into the Connecticut River, is by extension a part of the “navigable waters of the United States”.

But at some point common sense says that remote bogs, ponds, sloughs, ditches, and “vernal pools”, that have no surface water connection to navigable waterways, ought to remain beyond the reach of Federal regulation, so long as they contribute no shocking downstream contamination.

But common sense failed Congress. It left to the courts the matter of just how far the navigable waters clause could be stretched. The Supreme Court’s most recent effort to interpret the law came in 2006. The appellant was John Rapanos, who filled and leveled an occasionally damp Michigan field 20 miles away from an actual waterway. The case became a judicial food fight, producing much rhetoric but no controlling opinion whatever.

At the invitation of the Court, the Obama administration produced a regulatory document titled Waters of the United States (WOTUS). It adopted the most extreme reading of “significant nexus” to bring almost every imaginable parcel of land under Corps and EPA jurisdiction.

A number of states went to court and won a stay of implementation of WOTUS. The new Trump administration announced it was withdrawing the plan.

But here’s the shocking part. Even though WOTUS never took effect, and even though President Trump signed an executive order withdrawing it, the Trump Justice Department is aggressively prosecuting the case of John Duarte in Tehama County, California.

As reported by Tony Mecia in the August 21 Weekly Standard, Duarte faces a $2.8 million fine plus a mandated outlay of as much as $13 million in “mitigation credits”. His crime: plowing a vacant 22 acre field to grow wheat without a Corps of Engineers permit.

The Justice Department – now supposedly run by Trump appointees – claims that tilling the field will loosen dirt that will find its way into “vernal pools”, thereby becoming an illegal “discharge” into navigable waters (sic). The Clean Water Act exempts operations related to “normal farming… for the production of food”, but the Justice prosecutors say that “normal farming” does not include reclaiming a vacant field that hasn’t been farmed for some years.

Duarte is understandably indignant and angry at his expensive and far from concluded ordeal. And he committed a major aggravation of his offense: he called the Corps staffers “a carload of idiots.”

The earlier the Clean Water Act martyrs often made similar protests. Big mistake. It’s not much of an overstatement to say that whenever an environmental regulator faces stubborn resistance, the government’s bureaucrats, inspectors, permit managers and prosecutors will go into high gear to make the offending landowner pay dearly for his insolence. They gave Ocie and Corey Mills 21 months in jail for protesting.  They ruined John Pozsgai’s life – 18 months in prison and a $202,000 fine. (A sympathetic federal judge, shocked by the government’s punitive behavior, reduced it to $5,000.) There are many others.

The first needed solution is for those running the government to control their appetites for regulating every single little thing just to prove they can make applicants comply, at whatever cost. (The White House needs to pointedly explain this to the Justice Department.)

Another part of the solution is for top regulatory officials to insist that their underlings behave reasonably and respectfully toward their “customers”, even if the customers are utterly exasperated at being throttled, impoverished and jerked around by a carload of idiots.

A further step would be to give an aggrieved applicant the right to file with an agency ombudsman a complaint about employee incompetence, rudeness, arrogance, and abuse. The ombudsman would report findings to the agency head. He or she would have to personally sign that he or she has read the report, and either rejected the complaint, or disciplined the employee and apologized to the customer. After the thirtieth working day, an agency head who continued to ignore this duty would be personally fined $10,000 a day, paid to the complainant.

It’s not perfect, but it’s certainly worth a try.

John McClaughry is vice president of the Ethan Allen Institute (

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