Two Big Questions Before Congress

Two big questions are before Congress, and they both need answering soon. Which is more alarming: the breathtaking scope the Environmental Protection Agency and the Army Corps of Engineers want to expand their power over all waters of the United States (WOTUS), or the cavalier, law-be-damned way in which they crafted the authority to do so?

A bill by co-sponsored by Arizona Sens. Jeff Flake and John McCain, S. 1140, would remind the EPA of something it forgot to do in promulgating its new rule: Obey the law.

First, a little history is in order. The 1962 publication of Rachel Carson’s Silent Spring began raising big concerns about the pollution in our nation’s rivers and lakes. On Dec. 2, 1970, by executive order, President Richard Nixon proposed creation of an Environmental Protection Agency.

Two years later, Congress passed The Clean Water Act, charging the Environmental Protection Agency and Army Corps of Engineers with the responsibility of keeping the “navigable” waters of the nation safe from pollution. Key word, ‘navigable.’ To the EPA, it’s merely English for carte blanche. 

In two prior appearances before the U.S. Supreme Court, Rapanos v. United States and Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, it was hoped parameters were erected on both agencies’ understanding of ‘navigable.’

No such luck. A rule giving the EPA and the Corps new authority — it’s only a slight exaggeration to say – over virtually every pond and ditch in the nation goes into effect August 28. 

“The Clean Water Act was written to govern interstate navigable waters,” said attorney Karen Harned of the National Federation of Independent Business. “No one doubts that the Mississippi River or the Great Lakes are covered by these rules. The problem is that the agencies [EPA and Army Corps of Engineers] want their regulations to spread far upstream to places where even a toy boat couldn’t float.”

 

There is another problem with the EPA’s new rule: The illegality of its creation.

According to regulatory expert Dan Bosch of NFIB, “They simply decided that they didn’t even need to consider the effects on small business. That analysis is required by law. It’s not optional.”

Indeed, the Office of Advocacy in the U.S. Small Business Administration even agreed, publicly calling out the EPA and Army Corps, in a rare inter-agency squabble under the same executive administration.

“The rule will have a direct and potentially costly impact on small businesses. The limited economic analysis which the agencies submitted with the rule provides ample evidence of a potentially significant economic impact. Advocacy advises the agencies to withdraw the rule,” wrote Dr. Winslow Sargeant, Advocacy’s former chief counsel, last year.

Former Congressman Larry Combest of Texas, who has worked on agricultural issues for more than 40 years, perfectly encapsulated the problem with the EPA’s new rule, in an article in The Hill. “Farmers, ranchers, dairymen and others, on and off the farm, are in widespread panic with the finalization of this rule because not only does it allow EPA  onto their land, but it throws the gate wide open to environmental group-led citizen lawsuits that promise to carry the rule’s reach beyond what even the EPA envisioned … This rule carries with it fines under the law to the tune of $37,000 per day, but comes with absolutely no clarity for  farmers as to what side of the law they are now on.”

Let’s hope it never comes to all this. Senators Flake and McCain are right to take the lead on forcing the EPA to abide by the law. S. 1140 currently has 41 co-sponsors. It should have all 100 senators, each one of whom – you would think — has a vested interest in seeing the laws they create followed by everybody.