The EPA vs. the Fourth of July

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Yesterday, ten senators, including Utah senators Mike Lee and Orrin Hatch, signed a letter sent to Environmental Protection Agency (EPA) Administrator Gina McCarthy to renounce the EPA’s proposed rule to expand the agency’s jurisdiction over water.  The letter cites several cases where environmental lawsuits threatened to end Fourth of July fireworks displays in San Diego, Lake Tahoe, and Lake Murray.  If the EPA’s power is expanded as anticipated under their proposed rule, then their expanded scope of jurisdiction could threaten an even broader range of fireworks displays.

EPA vs. the Fourth of July by Senator Mike Lee

I don’t feel like I need to make an extended argument about why we shouldn’t let the EPA and a gang of environmentalist lawyer thugs end the Fourth of July as we know it.  However, to the extent that this threat causes Americans to take a closer look at the EPA’s proposed “Waters of the United States” rule, I am glad that these senators have brought this issue to our attention.

The rule was proposed on April 21, 2014, and it is currently in its public comment period, which closes on July 21, 2014.  At the time that I am writing this, the rule already has 203,693 comments.

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This probably makes this rule one of the most commented on rules ever.  And what has prompted so much push back to this rule?  Here is a random sample of a comment (the first one I clicked on) that was submitted by Richard Curtis, a farmer in Georgia:

I am the manager of a Family Limited Partnership which has about seventy Limited Partners. We moved to Wrayswood in 1948 and have been able to keep this family farm and the family growing since then. In 1948 four(parents and 2 children) of us moved to Greene County Georgia. We bought a rundown sharecropper farm that had no timber and was all red clay hills (bare) that ran the creeks and river completely red every time it rained. Things have changed since then with careful planning and God’s blessing we have no red clay hills but have several thousand acres of timber land, several hundred acres of pasture land for cattle and a couple of hundred acres in row crops. This compares to almost all of the land being in row crops when we moved here.We have many creeks and water sources that start on the land and several miles of interior roads.If this rule goes into effect we would lose control of a lot of our waterways that we have already paid good money for. It would also make some parts of the land worth less because we
would not have free use of the water. I pray that you will withdraw this proposed rule as we are better caretakers of the land and water than a government agency will ever be.

I don’t have time to read through 200,000 comments, but I suspect the vast majority of them make similar points.  I haven’t been shy about publicizing instances where the BLM has demonstrated that they are just as likely to cause irreversible harm to the land than private landowners would.  I think most Americans when they celebrate the Fourth of July in some way are also celebrating the freedom, the wealth, and the empowerment that comes from private ownership of property, and these are the fundamental American values that this EPA rule undermines.  Losing our fireworks would be an embarrassing and shameful loss, losing the foundation of the American Dream would be far more threatening.

So, if you haven’t commented on the “Waters of the United States” rule, perhaps a good activity this Fourth of July would be to visit regulations.gov and share your grievances with EPA.  Declare your independence from the edicts of unelected bureaucrats.

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After all, the EPA admits that this rule is a response to their recent losses in the Supreme Court, where the justices ruled that the EPA exceeded their authority with an expansive definition of “navigable waterways.”  If the EPA were to have their way, a dry wash in the middle of the deserts of Utah would be considered a navigable waterway.

Also, it is worth noting that in his concurring opinion to the Sackett v. EPA decision, Justice Alito said the following:

The court’s decision provides a modest measure of relief. At least, property owners like the petitioners will have the right to challenge the EPA’s jurisdictional determination under the Administrative Procedure Act. But the combination of the uncertain reach of the Clean Water Act and the draconian penalties imposed for the sort of violations alleged in this case still leaves most property owners with little practical alternative but to dance to the EPA’s tune.

Real relief requires Congress to do what it should have done in the first place: provide a reasonably clear rule regarding the reach of the Clean Water Act. When Congress passed the Clean Water Act in 1972, it provided that the Act covers “the waters of the United States.” 33 U.S.C. §1362(7). But Congress did not define what it meant by “the waters of the United States;” the phrase was not a term of art with a known meaning; and the words themselves are hopelessly indeterminate. Unsurprisingly, the EPA and the Army Corps of Engineers interpreted the phrase as an essentially limitless grant of authority. We rejected that boundless view, see Rapanos v. United States, 547 U.S. 715, 732-739 (2006) (plurality opinion); Solid Waste Agency of Northern Cook County v. Army Corps of Engineers, 531 U.S. 159, 167-174 (2001). But the precise reach of the Act remains unclear.

In an effort to sympathize with the devil, it must be frustrating for the EPA who previously assumed essentially limitless authority over the nation’s water to now have to struggle in an environment of regulatory uncertainty that resulted from poorly drafted, and increasingly ancient law.  We shouldn’t be surprised by their impulse to borrow the president’s pen and draft a rule to their liking which reinstates and formalizes the power that the Supreme Court took away from them.  However, it is worth noting that Justice Alito made it clear that Congress should be the institution that clarifies the ambiguities created by the Clean Water Act and not the unelected bureaucrats in the EPA.  Maybe while you are submitting a comment to the rule you can tell the EPA that you agree with the Supreme Court: No Regulation without Representation!

I hope everyone has an enjoyable time watching fireworks this Fourth of July.  As you watch the bombs bursting in air and the rockets with their red glare and you contemplate how blessed we are to live in this country, don’t forget the 200,000 mostly rural Americans who are prostrating themselves in supplication for relief from the unelected bureaucrat’s edict pen.  You might just ask yourself what it was our forefathers declared independence from.


 

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