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It’s only been in the last 30 years or so that the federal government has tried to take over private property on such a broad scale, with flimsy claims that there’s some kind of “water” connection to dry land.

Try forty. The spate of laws under Nixon was pursuant to the collapse of the Bretton Woods Agreement in 1971. Everything from the CWA to NEPA to the ESA soon followed.

The water from my bathtub runs into the Colorado River, eventually. Does that give Obama control over my property?

As far as the EPA is concerned, yes.

It sounds crazy, but we’re headed closer to, not farther from, total federal control.

I covered the threat to property rights of instituting non-point TMDLs for silt in my first book published twelve years ago. If you go back to about 1999, you will find NRDC lawsuits instituting enforcement of 303(d) standards for nonpoint sources in all fifty States. At that time I warned about this very issue of considering silt in ephemeral streams as nonpoint sources of pollution. Even an attorney at Pacific Legal had read it:

It is fairly obvious that the NRDC lawsuit was not the first that the EPA had heard about enforcing 303(d) TMDL on nonpoint sources. Both litigants are members of the same multilateral organization, the International Union for the Conservation of Nature and Natural Resources (IUCN). In this case, both litigants have a confidential, offshore venue at which to conclude the settlement in advance, and get a free vacation in the deal. The litigants can walk into the Federal Court and tell the judge that they’ll settle. The judge looks at the backlog and down comes the gavel. It’s a done deal: The litigants can enter into a consent decree with a time limit for implementation upon which they alone agree. They can even have the press releases written in advance.

It’s called a sweetheart suit.

There are dozens of Federal Courts in the Western United States. No one could possibly monitor all of these lawsuits sufficiently to find out about the suit, notify the affected property owners, gather data capable of refuting the claims, and organize a response quickly enough to block the consent decree. No one is there with the preparation and aura of credibility to refute the legitimacy of the claims or contest their jurisdictional authority to institute and enforce the nonpoint TMDL.

Now, what was the point of all this? Why should the NRDC and the EPA think the nonpoint nitrate TMDL in the San Lorenzo River Watershed is such a big deal? It’s gonna take a little while for this one to sink in.

Mud.

Wherever there is dirt and water, there is mud. Whenever you mix mud and water, you get suspended silt. Mud is a nonpoint source of silt. Silt is found everywhere there is dirt, which is everywhere. If you want to control the use of dirt, just call it a pollutant! It isn’t clean water any more, it’s dirty. People don’t want dirty water. They want clean water. Just ask them.

I hardly need dire warnings about this from you.