ANALYSIS/OPINION:
Be sure not to spit too much. If you do, you might create a wetland in the eyes of the EPA. And it’ll want to regulate it.
Claiming they want to “clarify” their jurisdiction under the 1972 Clean Water Act, the EPA and the Army Corps of Engineers have given the public until July 21 to comment on proposed new regulations to expand their power, by adding small, temporary and seasonal flows of water.
Like places where somebody has spit. Or could spit in the future. And of course mud puddles. Might kids splashing in a puddle become a federal offense?
Claiming it’s all necessary to protect us from dirty water, the bureaucrats are marching forward with their power grab, an overreach so severe that they someday might require federal approval to water your lawn and garden.
The Constitution provides federal authority over “navigable waters.” The EPA and Corps of Engineers seem to think that means wherever the tiniest of toy boats might float. The Corps has even argued to the Supreme Court that their jurisdiction over water is unlimited.
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The agencies’ rationale is that even small and temporary flows lead to permanent and navigable waters. Eventually. After all, doesn’t all water flow downhill? Just like all power flows to Washington, D.C.? And like the interstate commerce clause means anything that might affect interstate commerce (which is to say, almost anything).
How big is this expansion of jurisdiction? Roughly speaking, 60 percent more power for EPA. That’s based on EPA’s announcement in April that “60 percent of stream miles in the U.S. only flow seasonally or after rain,” but would henceforth be regulated.
The EPA claims its efforts are all based on sound science. Except that they aren’t. The agency announced its work is based on a “draft” scientific assessment, a report which won’t be finished until after the time expires for public comment.
Yet the bureaucrats want to rush their regulation before all the facts can be reported and debated publicly. And before this fall’s elections might get in the way.
That EPA draft report (“Connectivity of Streams and Wetlands to Downstream Waters”) simply confirms the obvious: Streams of water flow into each other. That’s not rocket science.
But the Water Advocacy Coalition and other critics comment that the report never considers which of those water connections are significant. Water from a mud puddle, a watering trough or a farmer’s fishing pond may eventually flow into a river, but that doesn’t make the quantity or quality meaningful.
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Sen. John Thune, South Dakota Republican, describes it in practical terms: “South Dakota is scattered with creeks, stock ponds, and ditches These small and seasonal bodies of water have typically been regulated at the state level, but a costly new power grab from the EPA could have devastating economic impacts on South Dakota farmers, ranchers, homeowners, and businesses.”
Led by Sen. Patrick J. Toomey, Pennsylvania Republican, 14 senators wrote the EPA that “this proposal will negatively impact economic growth by adding an additional layer of red tape to countless activities.”
Rep. Jason Smith, Missouri Republican, wrote that the proposal would require federal permits for “every pesticide and fertilizer application,” even for homeowners.
The American Farm Bureau warns that “ordinary fieldwork, fence construction or even planting could require a federal permit” and that “the rule would expand federal control over land features such as ditches and areas of agricultural land that are wet only during storms When Congress wrote the Clean Water Act, it clearly intended for the law to apply to navigable waters. Is a small ditch navigable? Is a stock pond navigable? We really don’t think so.”
Shame on those who distort the well-intentioned goal of clean water and drown it in a flood of Washington red tape. It should make all of us so mad that we could just spit.
But be prepared to pay a fine when you do.
• Former Congressman Ernest Istook’s daily radio program can be heard online, noon to 3 p.m. Eastern time, at KZLSam.com. Sign up for his free email newsletter at Eepurl.com/JPojD.
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