Originally published August 6 2012
EPA violated 10th Amendment and state rights - Virginia coalition files federal suit over unconstitutional rain water collection mandate
by J. D. Heyes
(NaturalNews) The Tenth Amendment has been described by some constitutional scholars and experts as the Bill of Rights' catch-all amendment, in that it was written into the nation's founding document as a way to remind future federal lawmakers and officials that unless the Constitution explicitly allows it or bans it, states - as sovereign entities - are free to do as they please.
It was Thomas Jefferson who said, in 1798, "Resolved, that the several States composing the United States of America, are not united on the principle of unlimited submission to their general government . . . whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force."
In other words, the federal government's powers are few and defined; state, by comparison, was supposed to be numerous and plentiful.
But that was then. It certainly isn't that way these days, as states have increasingly fallen under the control over a growing federal Leviathan and its multitude of bloated bureaucracies.
Well, the time seems to have come when states - some of them at least - appear to have had enough. Take Virginia.
A group from the Commonwealth has filed suit in federal court alleging that one of the crown jewels of federal bureaucracy - the Environmental Protection Agency - has stepped way over the central government's constitutionally limited powers with new rules governing, of all things, rain water run-off.
According to the complaint filed by the Occoquan Watershed Coalition, the EPA violated the Tenth Amendment by imposing a "coercive ... unfunded mandate" on a watershed, "to implement a federal program - one not imposed by or under Virginia Law."
New standards equals hundreds of millions of dollars
The group says the EPA's rules unconstitutionally force Virginia to control the amount of rainwater allowed to flow into a stream in Fairfax County. The mandate seeks to protect benthic organisms - the benthic zone is the lowest area of a body of water, along the bottom - that the EPA says are killed off by the sediment-rich rainwater.
The suit was filed on behalf of the coalition by the Free-Market Environmental Law Clinic, which estimated the cost of the EPA's mandate at about $225 million.
"If the county is forced to spend that much money on a single watershed, it will mean not one of the other 29 watersheds in the county will receive funds for their restoration, including the eight watersheds in the OWC's territory," says the law clinic, on its Web site.
The suit says a small portion of Accotink Creek, with about 120 miles of shoreline, is "impaired," under the EPA rules, because soil along an 8.1-mile stretch has eroded and, when it rains, the soil runs off into the creek.
"To address this problem, Fairfax County would normally place rock against those parts of the stream bank that erode the most, and take other actions that fit within its budget," says an analysis of the case by the American Tradition Institute. "Virginia and Fairfax County have been working together to address Accotink Creek, but the U.S. Environmental Protection Agency has rejected those efforts and in their place adopted a new water quantity standard that limits the total amount of water that can be discharged into the stream each day."
That "standard" is what is being challenged by OWC.
Trampling the sovereignty of the state
"The Supreme Court has repeatedly held that this kind of coercive federal mandate on a local government is simply not allowed," said Dr. David W. Schnare, Director of the FME Law Clinic.
"Because Fairfax County and the Commonwealth of Virginia refused to raise this constitutional challenge in their recent suit against EPA, the citizens directly harmed by EPA are the only ones left to protect the rights and privileges of the Commonwealth and FME Law is representing their interests," he said. "Without that assistance, the serious problems in 29 watersheds will go unaddressed while EPA asks Fairfax County to empty its coffers in a vain effort to fix a problem of minor significance."
In its suit, the OWC claims the Clean Water Act gives EPA the authority to regulate sediments flowing into streams via pipes or point sources, but gives states and local governments the power to manage non-point sources.
"This is the kind of coercive commandeering the Constitution does not authorize - commandeering that tramples the sovereignty of the state and local governments," the complaint says.
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