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Policy: Environment & Energy

If it's wet, the EPA wants to regulate it

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Opinion,Ron Arnold,Columnists,EPA,Energy and Environment

President Obama's shameful attacks on his fellow citizens are piling up: his “War on Coal” (a new EPA “climate” rule to destroy the coal industry) and his “War on Ranching” (a half-million-acre “national monument” smothering New Mexico ranchers), have now been topped by his “War on Everybody Else.”

By that I mean Obama’s outrageous proposed rule titled “Definition of ‘Waters of the United States’ Under the Clean Water Act” which would remove “navigable” from American water law and redefine nearly everything wet as “waters of the United States,” or WOTUS — and potentially subject us all to permits and fines.

That abomination is equivalent to invasion by hostile troops out to seize the jurisdictions of all 50 states. WOTUS gives untrustworthy federal bureaucrats custody of every watershed, creates crushing new power to coerce all who keep America going and offers no benefit to the victimized and demoralized tax-paying public.

If that sounds overly dramatic, the House Transportation and Infrastructure Committee's Wednesday hearing titled “Potential Impacts of Proposed Changes to the Clean Water Act Jurisdictional Rule” promises to make it seem like an understatement.

Rep. Bob Gibbs, R-Ohio, chairman of the Water Resources and Environment Subcommittee, is set to convene that hearing with witnesses from six affected sectors -- state and county governments, water and flood managers, agriculture and construction -- and two Obama appointees, the Environmental Protection Agency's Robert W. Perciasepe and Assistant Secretary of the Army Jo-Ellen Darcy (for the Corps of Engineers).

I asked Gibbs what effect the Obama administration’s WOTUS proposal would have on the economy and job creation. He told me, “The rule would significantly expand federal jurisdiction under the Clean Water Act to potentially include all waters and wet areas. It would just create additional red tape when states are already capable of fulfilling the role of water management.

“In my view this is a power grab, nothing more,” Gibbs said.

The evidence supports Gibbs. The EPA has been pushing its “any hydrological connection” theory of jurisdiction for more than a decade and getting slapped down by the U.S. Supreme Court -- and keeps grabbing anyway.

In 2001, the Supreme Court in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers rejected regulation of “isolated waters” because the waters lacked a “significant nexus to navigable waters.” Not to be stopped by a mere Supreme Court decision, the EPA began regulating any water “connected” to navigable waters, including ephemeral streams, ditches, drains, “relatively permanent” waters — and nearby wet areas. Grab, grab, grab.

In 2006, the justices in Rapanos v. United States rejected EPA’s assertion of jurisdiction over those “connected” waters as overly broad. So the EPA’s Office of Research and Development paid some willing scientists to search anything in the scientific literature that might be a “significant nexus,” but couldn’t find enough in the water, so they changed the rules to include “consideration of ecologic factors,” i.e., any living thing on dry ground that needs water. That pretty much covers every acre of the United States. Grab, grab, grab.

The EPA convened a science advisory board, which rubber stamped the ORD’s disgraceful literature search on June 5, 2014. Now we have the justification for atrocity, the draft EPA report: "Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence."

Most wretched, the proposed rule contains “exemptions” for existing crop land, agricultural ditches and even home uses such as decorative ponds — which is a vicious ruse. All experience tells us that if it’s wet, the EPA will make you wait endlessly for a costly permit and maybe fine you for using your own water.

One of the hearing witnesses, Bob Stallman, president of the American Farm Bureau Federation, told me, “I have been farming for decades and I can tell you that ditches are meant to carry water! That is why most ditches will be regulated under this rule.

“EPA is deliberately misleading the regulated community about the impacts on land use. If more people knew how regulators could use the proposed rule to require permits for common activities on dry land, or penalize landowners for not getting them, they would be outraged.”

Another of the six witnesses has similar worries about private property rights. Kevin Kelly, a long-time Delaware builder and 2014 chairman of the board of the National Association of Home Builders, said, “The broad and ambiguous definitions in the proposal create uncertainties that add to the time and cost of the present permitting process.

“But that’s the least of our worries,” Kelly added. “This plan could remove available land from development, which greatly raises the cost of what’s left and could have staggering negative impacts on the housing recovery. Home buyers would feel the worst of it.”

The problem really boils down to Obama’s executive power to make such a rule and the lack of congressional power to stop him – with the Democratic Senate majority, no blocking bill could likely pass. I asked an attorney with deep experience about that in an email.

Lawrence Kogan, president and CEO of the Princeton, N.J.-based nonprofit Institute for Trade, Standards and Sustainable Development said in an email, “There’s actually little Congress can do. There is an administrative backstop, the Information Quality Act, intended to ensure the quality, integrity, credibility and reliability of the science that federal executive branch agencies use.”

But, he said, “The draft science report is now only for review, and EPA says it ‘does not represent any Agency determination or policy.’ So it’s technically not yet subject to Information Quality Act review – a cute maneuver. EPA assures us that the finalized science report will support the scientific justification for the regulation.”

Bottom line? Kogan said: “The so-called ‘science' behind this water rule is not to be trusted.”

RON ARNOLD, a Washington Examiner columnist, is executive vice president of the Center for the Defense of Free Enterprise.
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