Federal agency authority and state trespass laws need defined to protect private property - June 2014
Things seem to be heating up on both the state and national levels as we move into June. We've seen a new interpretive rule come out of the Environmental Protection Agency (EPA) defining what they think the definition of “waters of the U.S.” (WOTUS) should be.
This rule, however, goes against recent court rulings and seeks to eliminate any possible confusion about what is a WOTUS by claiming pretty much everything is a water of the U.S.
The American Farm Bureau Federation’s “Ditch the Rule” effort will hopefully help defeat this power grab. The 88 page Federal Register Notice seeks to better define what constitutes EPA's authority over almost all land in the U.S. These proposed rules, if adopted, certainly appear to give the Agency an even bigger role in regulating citizens.
Part of the problem lies with the Clean Water Act (CWA) itself. When passed, Congress said the CWA was the policy to protect navigable waters in the U.S., but didn't define what they really meant by navigable waters. Over the years the courts have done this as the EPA and the Army Corp of Engineers have established that waters of the U.S. aren’t just navigable waters, but also tributaries to navigable waters and waters adjacent to tributaries of navigable waters.
The Supreme Court in several recent cases have begun to rein in the agencies, but in one of the latest rulings one justice pointedly stated that Congress needs to better define the agencies authority. Like the Endangered Species Act, however, we don't think that will happen anytime soon.
Speaking of the Endangered Species Act, the House is working on four extremely modest reforms of this broken piece of legislation which has immediately been pilloried as gutting the Act by the factory fund raisers in the environmental community. One of the reform efforts would bring transparency to the process of who gets taxpayer dollars from the federal government through the Equal Access to Justice Act when the federal government issued. Another would allow some ability to contribute to the process to states which will be affected by ESA decisions. The big environmental groups and their supporters in the Senate have indicated that none of these bills will go anywhere in the Senate. So once again, private property will be taken for public purposes without even a cursory look at giving these individuals any compensation for this taking by the public.
On the state level here in Wyoming, the Judiciary Committee will look at a bill that will make it more difficult to trespass to collect data. We have been supporting this effort. Numerous entities utilize the lax trespass prosecution by local government officials to gather information by trespassing across private land rather than obtaining permission from the landowner prior to their efforts. In an era where remote sensing is becoming almost routine this is something landowners need to protect their interests. Stronger trespass laws are needed in Wyoming.
With these and many other issues, this summer will be busy and based on some of the statements out of Washington, D.C. it is likely to get even busier.
By Ken Hamilton, Wyoming Farm Bureau Federation Executive Vice President