American Elephants

The EPA Is A Lawless, Rogue Agency That Should Be Abolished. by The Elephant's Child

unofficial-stream-small-custom-e1339556645568We have complained about Congress’ inclination to pass a broad law and turn the clarifying, defining and rulemaking functions over to a federal agency. That’s not quite fair, except in the case of the Clean Water Act (CWA).

The Clean Water Act regulates the discharge of pollution into navigable waters. Rather than limit the definition of “navigable waters” to mean waters that are interstate and navigable in fact—the Clean Water Act broadens the definition of “navigable waters” so as to include non-navigable waters in order to give federal regulators a greater degree of environmental oversight. It was passed in 1972, with some specific exclusions, and has been a fairly steady source of litigation ever since.

In 2006, in Rapanos v. United States, four left-leaning justices ruled that there are no limits on federal jurisdiction. Four right-leaning justices ruled that federal jurisdiction is limited to “relatively permanent, standing, or continuously flowing bodies of water forming geographic features.” One justice (Kennedy) wrote that a water or wetland constitutes “navigable waters” under the Act if it possesses a “significant nexus” to waters that are navigable in fact or that could reasonably be so made.  You see the problem.

In May of this year, the EPA and the USACE (the Army Corps of Engineers) interpreted the Rapanos decision in the broadest fashion they could and promulgated the “Waters of the United States” rule, supposedly to clarify federal jurisdiction.

  • The EPA colluded with environmental special interests at the Sierra Club to manipulate the public comment period, in possible violation of federal anti-lobbying laws, as reported by The New York Times.
  • Also, the EPA ignored state input during the public comment period, in blatant contravention of the principles of cooperative federalism established by the Clean Water Act.

It’s all based on the term “significant nexus,” and ephemeral streams were added to federal jurisdiction, so all the feds have to do is claim jurisdiction—ant the argument can be made that everything is connected. Including ponds, ditches and puddles.

Fast forward to last Thursday August 27: a federal judge in North Dakota blocked the new Obama administration rule that would  the federal government jurisdiction over some state waterways.give

U.S. District Judge Ralph Erickson of North Dakota issued a temporary injunction against the rule, which gives the U.S. Environmental Protection Agency and Army Corps of Engineers authority to protect some streams, tributaries and wetlands under the Clean Water Act. The rule was scheduled to take effect Friday.

“The risk of irreparable harm to the states is both imminent and likely,” Erickson said in blocking the rule from taking effect.

Thirteen states led by North Dakota were involved in the lawsuit: Alaska, Arizona, Arkansas, Colorado Idaho, Missouri, Montana, Nebraska, New Mexico, Nevada, South Dakota and Wyoming.

August 28, Headline, Fox News: “EPA says clean water rule in effect despite court ruling” (Heather MacDonald: “lawlessness breeds lawlessness”) Apparently— never mind the federal court, we’re going to do what want! The EPA says the rule will safeguard drinking water for millions of Americans. Well, of course you have noticed the millions of Americans dropping dead from drinking puddle water and ditch water. The American Farm Bureau has declared war. Lawsuits to block the regulation are pending across the country, Congress has moved to thwart it, The White House has threatened to veto.  Opposition, however comes from both parties, businesses and most states.

The EPA has become known as an out-of-control rogue agency, and is probably the most hated agency in the government— though that designation may be up for grabs. When the head of the executive branch makes law on his own, ignores laws at his pleasure, and in general ignores his sacred oath, the agencies under his direction do the same. “Lawlessness breeds lawlessness.”

In the wake of the Gold King Mine spill of 3 or more million gallons of  toxic mine tailings into the Animus River, turning the river a nasty mustard color, the EPA is undoubtedly anxious to get news about their agency out of the nation’s consciousness.Bad timing. Now that the toxic waters have progressed to Lake Powell and past, the media has quietly dropped the daily pictures—just as they are about to reach Grand Canyon National Park. There is a limit to the amount of bad news an agency can cope with.

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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