HOW EPA & ACE ATTEMPT TO IMPOSE FEDERAL WOTUS REGULATION ON PRIVATE PROPERTY

Transcription

1 HOW EPA & ACE ATTEMPT TO IMPOSE FEDERAL WOTUS REGULATION ON PRIVATE PROPERTY ANGUS MCINTOSH, Ph.D. DIRECTOR NATURAL RESOURCES LAW & POLICY RESEARCH, LAND AND WATER USA FOUNDATION RANCH CONSULTANT & ADMITTED EXPERT WITNESS FORMER EXTENSION ASSOCIATE III EXTENSION ANIMAL RESOURCES DEPARTMENT NEW MEXICO STATE UNIVERSITY ACADEMIC MEMBER AMERICAN SOCIETY OF FARM MANAGERS AND RURAL APPRAISERS PREVIOUS NEW MEXICO REGISTERED APPRAISER #02073-A

2 THE DEFINITION OF WATERS OF THE UNITED STATES The authority of Congress over the Navigable Waters of the United States is found in Article 1 Section 8 of the United States Constitution. It derives from Congressional authority over Interstate Commerce.

3 THE DEFINITION OF WATERS OF THE UNITED STATES Gibbons v Ogden, 22 US 1 (1824) This case first defined the authority of the United States in terms of federal supremacy over the States on the subject of Navigable Waters based on the Commerce Clause.

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5 Congress Recognized and Sanctioned Two Different Settlement Doctrines The Riparian Doctrine developed in the eastern United States and had its origins in English law. The first United States eastern water law was derived from English Common law. It generally dealt with issues of passage, navigation and commercial uses in transportation.

6 Congress Recognized and Sanctioned Two Different Settlement Doctrines The Riparian Doctrine developed: 1. In areas where water was abundant. 2. At a time when fishery consumption and transportation were the dominant uses. 3. Under a legal system that recognized that each owner of land along the watercourse had the equal right to the reasonable use of the water as it flowed through his land.

7 Congress Recognized and Sanctioned Two Different Settlement Doctrines The Appropriation Doctrine developed in the western United States and had its origins in Spanish/Mexican law. The first United States western water law was Kearney s Code: The laws heretofore in force concerning water courses, stock marks and brands, horses, inclosures, commons and arbitrations shall continue in force (1846).

8 Congress Recognized and Sanctioned Two Different Settlement Doctrines The Appropriation Doctrine developed: 1. In areas where water was scarce. 2. At a time when agricultural (irrigation, stock watering) and mining were the dominant uses. 3. Under a legal system that recognized that the first person to put water to a recognized beneficial use (regardless of whether they owned riparian land) acquired a superior right to later appropriators.

9 Congress Sanctioned and Recognized Two Different Settlement Doctrines By Acts of July 26, 1866, May 9, 1870, Desert Land Act of 1877, and Act of August 30, 1890 Congress established the 100th meridian as the boundary of the arid region of the West. California v. United States, 1976; United States v. New Mexico, 1976.

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11 Kearney s Code (1846). Water-right/ROW Act (July 26, 1866/July 9,1870). Rivers and Harbor Act (March 3,1899). Livestock Reservoir Site Act (LRSA) (January 13, 1897). Forest Service Organic Act (FSOA) (June 4, 1897). Forest Reserve Rights of Way Act (March 3,1899). Reclamation Act (June 17, 1902). Pickett Act (June 25, 1910). N.F. Cooperative Improvement Act (June 30, 1914). Stock-Raising Homestead Act (SRHA) (December 29, 1916 amended January 29, 1929, June 21, 1949). Taylor Grazing Act (TGA) (June 28, 1934). Bankhead-Jones Farm Tenant Act (July 22, 1937). Compensation for Cancelled Permits (July 9, 1942). Granger-Thye Act (April 24, 1950). Federal Land Policy Management Act (Oct. 21, 1976). National Forest Management Act (Oct. 22, 1976).

12 Key Federal Land Settlement Laws The Act of 1866/1870, which granted agricultural and stockwater rights under state law (Section 9) and associated livestock rights of way (Section 8). The General Allotment Act of 1887, The LRSA & FS Acts of 1891/1897, that granted ranchers control of 160 acres around every stockwater location and guaranteed the right to acquire water rights under state law, also, the right construct ditches, roads & improvements within N.Forests. The SRHA of 1916, 1929, 1949, and amendments further reserved and granted range forage & grazing rights, improvement rights (fences, ditches, reservoirs, etc.), defined dimensional limits of livestock right of ways, and rights to compensation.

13 Key Federal Land Settlement Laws The Reclamation Act 1902, which established irrigation districts and acknowledged state water law as controlling water rights, also, adopted the Unit Policy granting an amount of land sufficient for the support of a family and promoted watershed conservation. The National Forest and Enlarged Homestead Acts of 1906, 1909, 1910, 1912, that reserved mineral rights timber use rights to residents while granting grazing allotments within N.Forests. The SRHA of 1916, 1929, 1949, and amendments reserved mineral rights and granted a limited surface title range forage & grazing rights, improvement rights, defined dimensional limits of livestock right of ways, and rights to compensation.

14 Key Federal Land Settlement Laws The Land Utilization, Conservation, and Resettlement Acts (Bankhead-Jones Farm Tenant Act, Taylor Grazing Act, Soil Conservation Act) , which created Grazing Districts, advanced the Unit Policy granting family sized farm and ranch units while reserving mineral rights to the U.S. and promoting soil conservation. The National Forest Management Act and Federal Land Policy Mangement Act, 1976, that redefined public lands as lands and interests in land that belonged to the U.S., grandfathered all prior existing rights and promoted soil conservation. The Surface Mining Reclamation Act 1977, recognized ranchers owning equitable surface title as having rights to compensation for forage, improvements, water rights etc.and promoted surface conservation.

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16 Key Federal Land Settlement Laws Kaiser Aetna v. United States, created a 4 part test to determine navigability. 1. Subject to the ebb and flow of the tide? 2. Connects with a continuous interstate waterway? 3. Has navigable capacity? 4. Is actually navigable?

17 Navigable waters of the United States?

18 Key Federal Land Settlement Laws Kaiser Aetna v. United States, created a 4 part test to determine navigability. 1. Subject to the ebb and flow of the tide? 2. Connects with a continuous interstate waterway? 3. Has navigable capacity? 4. Is actually navigable?

19 Navigable Waters of the United States?