American Elephants


Another Big Power Grab From The Rogue EPA! by The Elephant's Child

Right before the July 4th weekend, when nobody was paying attention, the Environmental Protection Agency (EPA) announced it has added a new regulatory weapon to its arsenal.

In a Federal Register notice on July 2, (you always check the Federal Register right before a 3-day weekend, don’t you?) the EPA stated that by the authority of the Debt Collection Improvement Act (DCIA) of 1996 it had issued a proposed rule that “will allow the EPA to garnish non-Federal wages to collect delinquent non-tax debts owed the United States without first obtaining a court order.” According to the Treasury Department, under DCIA, such debts include “unpaid loans, overpayments or duplicate payments made to federal salary or benefit payment recipients, misused grant funds, and fines, penalties or fees assessed by federal agencies.

The EPA explains that, “Prior to the enactment of the DCIA, Federal agencies were required to obtain a court judgment before garnishing non-Federal wages. Section 31001(o) of the DCIA preempts State laws that prohibit wage garnishment or otherwise govern wage garnishment procedures.” It’s worth repeating just part of the list of debts for which wages may be garnished under the DCIA: “fines, penalties or fees assessed by federal agencies.”The EPA rule also states that, “we view this as a noncontroversial action and anticipate no adverse comment.” Consequently, the rule continues, “This direct final rule is effective September 2, 2014 without further notice unless EPA receives adverse comments by August 1, 2014.” (emphasis added)

Andy Johnson is a local welder in Unita County, Wyoming. The EPA has issued an “administrative order” that he destroy a pond he painstakingly built on his own property or face $75,000 a day, for violating the Clean Water Act.  This is the same amount that the EPA was threatening the Sacketts with, after they declared the lot where the Sacketts were building their home between two lots that already had homes, a wetland. The EPA claimed the couple could not even challenge their ruling, they just had to pay it. That one went to the Supreme Court where the Sacketts won a unanimous decision.

Mr. Johnson’s pond is not polluted, wildlife enjoy it, it is on Mr. Johnson’s own property and he even sought regulatory approval from the state for his private effort to improve the environment. But he did not get a permit from the Corps of Engineers, and thus finds himself under the heavy thumb of the EPA. The EPA claims jurisdiction under the Clean Water Act which gives the EPA jurisdiction over the navigable waters of the United States. This is where it gets remarkably dicey. Mr. Johnson’s stock pond (there are exemptions for stock ponds) takes water from Six Mile Creek, a perennial tributary of the Blacks Fork River, which is a tributary of the Green River “which is and was at all relevant times a navigable, interstate water of the United States.” The fact that waters from Six Mile Creek might eventually flow into the Green River, does not make Six Mile Creek navigable waters. The EPA has been anxious to claim jurisdiction under that law back to every stream, rivulet, and trickle that eventually flows into their navigable waters. Your downspouts may be next, if they get away with this.

The EPA has ordered Mr. Johnson to submit within 30 days a plan prepared by a consultant that asses the impact and provides a restoration plan and a schedule that requires all restoration work to be completed within 60 days of the plan’s approval.Three Senators have fired off a letter to the EPA, and as the EPA gave Mr. Johnson only ten calendar days to respond to their compliance order, suggested that the EPA respond to them within a similar timeline.

The EPA said that if it receives no adverse comments by August 1. the direct final rule will go into effect. Which would give them free rein to go after whoever they choose and garnish their wages without a court ruling — which in a free society should be unthinkable. This rogue agency has been slapped down by the courts over and over, but keeps seeking more power. I am only partially kidding about your downspouts. I would suggest that you submit an adverse comment.  These power grabs need to be stopped in their infancy. Here’s a model from the Heritage Foundation.




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