May 12, 2011
Puddle Power GrabBy Jerry Shenk
Barack Obama's EPA means to implement the major provisions of failed legislation by regulatory means, a massive power grab with frightening implications. But with the American media preoccupied with a royal wedding and the assassination of Osama bin Laden, almost nobody seems to have noticed when late last month an important announcement was made by the Environmental Protection Agency:
Water is life. The administration would have us believe it to be concerned about water quality, but the real issues are land, power and control.
If implemented, EPA guidelines will allow the agency to decide the extent of their jurisdiction over every body of water of any size and eventually result in binding regulations that will affect us all.
The EPA announcement has its origin in HR 2421, the Clean Water Restoration Act of 2007, introduced in the 110th Congress. For the most part, the bill's sponsors were among the most progressive members of the House representing the safest liberal districts
The bill had nothing to do with clean water or restoration. HR 2421 was written to give the Army Corps of Engineers and, especially, the Environmental Protection Agency control of all American watersheds. Since all land is in a watershed, the result would have put national land use policy in the hands of the central government.
Contrary to the written law, confirmed by two Supreme Court decisions limiting federal jurisdiction to "navigable waters," HR 2421 would have expanded the jurisdiction of the Clean Water Act of 1972 to include all waters of the United States and all "activities affecting these waters."
In addition to private property, HR 2421 had implications for communities, businesses, agriculture, forestry, open grazing land, energy production and mining. In short, the bill would have permitted the government the power to regulate any use of private and federal land for almost any purpose.
HR 2421 was referred to committee. The bill never emerged from committee: it was never voted upon; and it never became law. A Senate counterpart bill, S. 1870, was similarly dispatched.
The 110th Congress is history. At the end of each two-year session of Congress, all proposed bills and resolutions that haven't passed are cleared from the books.
But the story doesn't end there.
But this Congress and the current president are different from those holding office in 2007. Those currently in charge of the Executive Branch recognize no legislative or constitutional boundaries to their ambitions. Their allies in Congress are willing accomplices of the administration.
Perhaps in acknowledgment of the new House majority, the administration has taken a different route to implementing its preferred land/water policy. The administration will not ask compliant congressional allies to reintroduce a bill and challenge a new majority in one congressional chamber.
The threat to private property rights embedded in the ill-fated Clean Water Restoration Act of 2007 lives on in Executive Branch bureaucratic overreach.
In a 2007 statement on HR 2421, The Texas Wildlife Association wrote:
The Environmental Protection Agency is attempting to rewrite the Clean Water Act of 1972 and overthrow the SWANCC and Rapanos Supreme Court Decisions of 2001 and 2006, all of which limited federal land jurisdiction to navigable waters.
The EPA's ambitions are bad policy: bad for business, bad for agriculture, bad for energy development, and bad for constitutionally guaranteed property rights and personal liberties. Largely thanks to government policies, food and fuel costs are reaching record levels. Allowing the federal government further regulatory control of energy or agricultural endeavors and assets will surely make bad situations even worse.
The new EPA guidelines are subject to a 60-day comment period, after which the guidelines will take effect. Members of Congress in both houses should be encouraged to remediate this EPA overreach as the House has acted to reverse EPA policy on CO2 and other agency excesses.
There is but one potential upside to the EPA's usurpation of power. It's May. Yard work beckons. If your yard has one or more low spots which retain water after rainstorms, the EPA could theoretically declare your property a wetland and prohibit mowing to preserve aquatic ecosystems. Really.