We thought we were so cool when we were among the first of our friends to know POTUS, in the original Secret Service vernacular, meant President of the United States.
But an expanding number of Lumberton and Hardin County residents are now learning the potentially “uncool” effects of WOTUS. The “waters of the United States” provisions within the Clean Water Act administered by the Environmental Protection Agency and enforced by the U.S. Army Corps of Engineers.
Uncool, if there is a word, is not our word. It’s how Larry Batman would describe the legal uncertainty over WOTUS.
You care about his plight because you could be just like him one of these days. You could be unable to sell your own land, donate your own land, use your own land how you see fit, buy property, get a building permit, clear your own property, and on and on - because of the federal governments perspective on WOTUS. It has happened to a lot of people.
Batman may be unable to sell or use a substantial portion of the east side of a 172 acre tract of land he owns northwest of Lumberton off Highway 326. High and dry at 70 feet above sea level except during gully-washers, (most of Lumberton is about 30 feet above sea level) the parcel of Batman’s property in question has been deemed a location of “navigable waters.”
The property is not in a Hardin County flood plain. It is timbered, and during heavy rain the tracks from timber company trucks can transport a small amount of water. But for most of the year anything larger than an unmanned Sonic chili dog “boat” would not be able to “navigate” anything there. Batman says in the past, a dry creek-bed had nicked a small part of the northeast and southeast corners of the parcel, but now there are no active rivers, creeks or tributaries on it.
“It’s absolutely annoying,” Batman told the Ledger.
“We bought it to use it in any way that we felt was prudent and… we are waiting for the government to maybe sneak through a law that inhibits our ability to use the land the way it was used for years and years and years.”
With constant shifts in the law surrounding the WOTUS rules, Batman could be prohibited from selling the land, or delayed in selling it until the Corps of Engineers can sign-off on the sale. Batman has been told that inspection could take up to 18 months.
13 states have sued the
federal government over what Attorneys General have deemed the unfair WOTUS rules of the EPA. And North Dakota U.S. Chief District Judge Ralph Erickson issued an injunction blocking the EPA regulations on the heels of the 2015 suit. An appeals court “stayed” its application nationwide shortly afterward - causing further uncertainty.
Republicans in the U.S. House and Senate passed a joint resolution last year to throw out the “WOTUS language” and settle the issue once and for all. President Obama vetoed that measure, and the U.S. Supreme Court is likely to end up ruling on whether WOTUS is constitutional.
Senate Majority Leader Mitch McConnell of Kentucky went so far as to say WOTUS gives federal bureaucrats “dominion over nearly every piece of land that touches a pothole, ditch or puddle.”
Thing is, a lot of those puddles could be in Lumberton, Texas.
Keller-Williams Realty Lead Agent Hershel Manley lost 2 buyers in Lumberton property sales almost instantly after WOTUS rules came into play.
Manley explained a potential sale on Talpa Road property to the Ledger, “What happens is, as soon as you tell someone that (WOTUS rules could apply) they totally turn and go the other way. And they were totally interested up to that point. Cash buyers. Ready to go. And when that hit, it just scared them off. They didn’t want to have anything to do with it. And the property ended up having a little strip of wetlands… in the middle of a dry creek bed. Well nobody in their right mind is going to build in the bottom of a creek bed anyway.“
Manley has been practicing at one of Lumberton’s most prestigious real-estate agencies for 9 years. He says he has never seen anything like the potential deal-killing impact of the WOTUS rules before or since. Manley called it a “scare” and has concerns that when the law is clarified, many home buyers and sellers could be affected.
Critics say the EPA rules can be interpreted in a way that gives the feds power over almost ALL properties and how you would use them. Even if you are only digging a ditch on the corner of your yard.
The Trinity Bay Conservation District in Anahuac was reportedly prohibited from cleaning debris from ditches by WOTUS regulations. The organization was simply trying to ensure the free flow of the waters.
State Representative James White argues WOTUS is a rule-set that went rogue.
“Initially, it meant - you know - major waterways, major rivers. Not anything that may have standing water,” he told the Ledger.
“So now the EPA has that discretion to limit land use or at least control the use of it if they believe there is a wetland there and it falls under the “waters of the U.S.” Now what that means for builders is that they have to go through this onerous enhanced process to get approval to make a deal. And it will add to the cost of building…”
White opposes what he calls “bad federal policy” and infers telling a landowner what he can and cannot do with his property is simply not “American.”
“And on top of that, this is just purely unconstitutional. The vast [federal] overreach was not legislation. It’s all agency rules. It is not constitutional. And to say that a house lot in Lumberton or any city in the U.S. impacts interstate commerce… that’s just ludicrous.”
Possibly the most fearful element of the EPA’s power in WOTUS is the uncertainty it sows. While property owners are allowed to make decisions with their holdings right now, county leaders know that could literally change in a month’s time. The “woe” of WOTUS won’t go away soon.
Hershel Manley: We never had a problem with it until recently when the bill was to be signed by the President and it caused a lot of uproar in Hardin County. One of the streets up here… somebody had reported that there were wetlands up there and man, it lit the bonfire off. We had public meetings up here with Esther Scarborough the Hardin County flood plains administrator and we actually had the Corps of Engineers come in on the property that I had – to determine if we had wetlands. They do a wetlands determination on the property. We lost two buyers because of it and- they hadn’t signed anything. But what happens is, as soon as you tell someone that they totally turn and go the other way. And they were totally interested up to that point. Cash buyers. Ready to go. And when that hit it just scared them off. They didn’t want to have anything to do with it. And the property ended up having a little strip of wetlands… in the middle of a dry creek bed. Well nobody in their right mind is going to build in the bottom of a creek bed anyway. We knew a part of that property was in the 100 year flood plain but a good portion of it … a 42 acre tract… probably 25 acres of it was out (of the flood plain.) so and it was way down in the middle of the creek. However it caused a lot of concern up here about wetlands and the Waters of the U.S. And when the President did not sign the bill everything went away kind of. Now it shouldn’t go away if there’s a possibility that it’s a wetland. People need to be made aware of it. And we have some disclosure forms to give. But up until that time and I’ve been doing real estate 9 years, I had not seen it happen one time until the “scare” came in. Initially, on Talpa Road. (home sites) And I had some property on Timber Wolf Road. It was 2-2 and a half months before we were gotten to. You’re not going to go down and build in the middle of a swamp, so most people build high and dry on the upper portion of a tract. Hey, it goes back to the developers of the subdivisions, the engineers that approved them and everybody if it’s not in compliance so it’s something for everybody to be concerned about. If they decide to sign that bill it could affect some people. But most people have built out of it… more knowledgeable about flood areas…. 70 feet of elevation ?? A lot of people think the navigable waters will be in the flood zone. Well, not necessarily. They may not be in there. Hey when the guy came from the Corps and watched him to observe some sites to test he had a spade and a reference book and we went down. He was looking at different types of vegetation and then soils and he would dig down probably 18-24 inches and he would pull samples up and open that book and he compared the soils. I mean there were exact pictures of the soils. They would determine if you were in the wetlands or no. If you’re a Bible believer… 30 feet in Village Creek Estates… $2300 more a year in a flood zone. If it goes in, it is definitely going to create more paperwork and will be harder to sell those properties. Hey, there are things called wetland banks…
St. Rep. James White : The EPA guidelines as it relates to the Waters of the United States, the waters? And then you get into the issue of what the wetlands means. And what the Waters of the United States did is it gave the EPA a broader more expansive role in determining what are wetlands and what they can regulate. Initially, it meant you know major waterways, major rivers. Not anything that may have standing water. So now the EPA has that discretion to limit land use or at least control the use of it if they believe there is a wetland there and it falls under the Waters of the U.S. Now what that means for builders is that they have to go through this onerous enhanced process to get approval to make a deal. And it will add to the cost of building… We already have federal and state regulations to monitor and evaluate these areas. What I think the problem is, is they have expanded to overreach. The EPA and really the Corps of Engineers is the kind of like enforcement arm of them, these regulatory bodies have not been able to staff up adequately to do all this enforcement. So part of the delay is they don’t have the people or the resources to evaluate these permit requests. And on top of that this is just purely unconstitutional, the vast overreach was not legislation. It’s all agency rules. It is not constitutional. And to say that a house lot in Lumberton or any city in the U.S. impacts interstate commerce… that’s just ludicrous. So hopefully we can get some new leadership in D.C. after November and iron this out. Corrective actions? I believe the actions that the Attorney General is doing right now, in trying to slow some of this stuff down and/or trying to mitigate some of the worst effects of it … And the Governor had come out with a set of legislative proposals called the Texas Plan which if Texas adopts along with other states… you could stop a lot of this stuff. Whether it’s the EPA, FDA, the US Supreme Court where yo urelaly have a court or bureaucratic body – you know – making legislation. And so by doing that we have really codified some state nullification on bad federal policy. The Governor has drafted and crafted and he will want these proposals introduced in the legislature next session and then I think he will take a national leadership role… to have other states adopt these measures. This is constitutional. And we have the power to go back to the well, amend the Constitution if need to limit the power of the federal government. So the federal govt. has proven that it has no propensity to reign in itself so the state legislatures must now use its power and reign in the federal government itself.
The Clean Water Act (actually a series of cumulative legislation mainly dating to 1972) uses the term “waters of the United States” to define its scope. The U.S. Supreme Court cases Solid Waste Agency of Northern Cook County v. Army Corps of Engineers in 2001 and Rapanos v. United States in 2006 generated some confusion over the detailed meaning of this phrase.  After the Obama Administration proposed to clarify the rule the House of Representatives passed the Waters of the United States Regulatory Overreach Protection Act of 2014, but the bill died in the Senate.
In 2015, the EPA finalized the
“Clean Water Rule” which proposed a new detailed and inclusive definition of “waters of the United States”, provoking another round of controversy. Thirteen states sued, and U.S. Chief District Judge Ralph R. Erickson issued an injunction blocking the regulation in those states. In a separate lawsuit, on October 9 a divided federal appeals court stayed the rule’s application nationwide. Congress passed a joint resolution under the Congressional Review Act simply overturning the WOTUS rule, but President Obama vetoed the measure.