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- Jeffrey C. Borneman

Introducing WOTUS - Water of The United States, A Partial-Birth Abortion

Jeffrey C. Borneman | August 30, 2015

Mere hours before the EPA Clean Water rule was to take effect, a North Dakota judge acted to block the Obama administration’s controversial water pollution rule in thirteen states which would render state's right's over its sovereign water and land null and void. This in not hyperbole.

While most American's are fixated on one "shiny penny" event after another, last week's news of the EPA slap-down may have escaped investor's attention entirely. Albeit a real and effective ruling, the judge's decision applies only to the 13 states that sued to stop the EPA's new water rule, and the injunction is temporary. Water (and associated lands) in the remaining 37 state's is now effectively controlled by the federal government.

I wonder what the state's legislatures think about that ...


"Known as the Waters of the United States — or what critics call WOTUS for short — the new rules have been controversial from the start," (AT).

According to Rick Wells, "Those rules give the federal government jurisdiction and control over virtually any water of any size in the United States and along with it, control over any land that water comes into contact with. It would effectively and unconstitutionally subordinate every American to the EPA with private property rights converted into privileges to be granted, denied or declared void by unaccountable, un-elected DC bureaucrats," (emphasis mine).


Judge Ralph R. Erickson called the Environmental Protection Agency’s attempt "inexplicable, arbitrary and devoid of a reasoned process," and issued an injunction preventing the EPA and the U.S. Army Corps of Engineers from claiming oversight of millions of acres of land that contain small bodies of water.

Judge Erickson added, " ... that the states would probably suffer harm if the courts did not act to intervene and ... “Once the rule takes effect, the states will lose their sovereignty over intrastate waters that will then be subject to the scope of the Clean Water Act," (emphasis mine).

EPA Reaction - Undeterred

In a statement issued shortly after the ruling, the EPA "pledged to continue with much of its original package of regulations in spite of the judge’s ruling, claiming that the decision only applied to the thirteen states which voiced objections ... In all other respects, the rule is effective on August 28," (AT).

Investor View

Prudent investors tend to own the items that are either rare, or being made rare.

As a manager of other people's money I attempt to avoid hyperbole, even when discussing blatantly unconstitutional agencies and the restrictions of rights, however the title given to this piece is accurate. The WOTUS rule is an abortion of personal property rights in the 37 states that did not sue to stop it. It is a partial-birth abortion only because one judge had the common sense to say "No". That said, the EPA has given the remaining 13 states fair warning that it will not stop unless congress stops it.

The world did not end on Friday morning after the effective date of WOTUS and few of us should expect the EPA to come to our homes, farms or businesses tomorrow to demand you cease-and-desist water use or claim your house is too close to some arbitrary border.

But it now can in 37 states.

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