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California Waterboards Property Rights

Tuesday August 1st, 2017   •   Posted by K. Lloyd Billingsley at 5:24am PDT   •  

August is National Water Quality Month and that might prompt a meditation on agencies such as California’s State Water Resources Control Board. The Board’s five full-time members are appointed by the governor and “the mission of the Water Board is to ensure the highest reasonable quality for waters of the state, while allocating those waters to achieve the optimum balance of beneficial uses.” Sounds good, but lately the unelected Board has been displaying some mission creep.

Federal Waters of the United States (WOTUS) policy had been limited to navigable bodies but in recent years federal regulators have expanded their reach into vernal pools, ditches and such. The Obama administration expanded the rules in 2015 and as under this policy regulatory zealots can punish farmers for using their own land. As we noted, California farmer John Duarte faces millions of dollars in fines for plowing a wheat field that contained vernal pools. In June the Trump administration rolled back “wetlands” rules and EPA boss Scott Pruitt told reporters “We are taking significant action to return power to the states and provide regulatory certainty to our nation’s farmers and businesses.” The State Water Resources Control Board, on the other hand, wants to deploy wetlands policy even stricter than the previous federal administration.

According to a Sacramento Bee report, the Board is proposing a “Waters of the State” rule that “would protect a broad array of wetlands including certain small streams and creeks, and a greater share of California’s vernal pools.” Homebuilders, farmers and business groups charge that the regulations “would create more red tape, higher costs and fewer rights for landowners.”

Reed Hopper of the Pacific Legal Foundation (PLF) is on record that the proposed rules could give the state considerably more power than the federal government. That is doubtless the intention of the unelected board, which is not just about ensuring water quality and “optimum balance of beneficial uses.”

Meanwhile, PLF is representing John Duarte, now who is attempting to have his case tossed on the grounds that the Army Corps of Engineers lacked the authority to sue him and the EPA chose not to do so.

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August 2017