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Wetlands and the Goverment Shutdown

Swamp Stomp

Vol 13, Number 41

The recent government shutdown has affected all of us. It is not just that we cannot take a hike in a park or fish in a reservoir. There are direct economic consequences that affect the people of this country’s ability to conduct commerce. The government’s authority to regulate the economy of the individual arises from the Commerce Clause. This can be found the US Constitution Article I, Section 8, Clause 3.

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[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;

The authority of the Government to regulate waters of the US stems from an interpretation of the Commerce clause. This has been the center point of all of the recent Supreme Court challenges to wetlands and waters regulation.

The regulatory definition of waters of the US found in 40 CFR 230.3(s) includes:

“All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;”

“…the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters:”

At issue is that the power to regulate waters of the US remains with Congress. This was clarified in Wickard v. Filburn, 317 U.S. 111 (1942). This was the United States Supreme Court decision that recognized the power of the federal government to regulate economic activity. Three points were clarified.

  • First, Congress may regulate the use of the channels of interstate commerce;
  • Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in Interstate Commerce, even though the threat may come only from intrastate activities;
  • Finally, Congress’s commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce (i.e., those activities that substantially affect interstate commerce).

The Supreme Court has clearly interpreted that activities that could affect interstate or foreign commerce are subject to regulation by Congress. Navigable waters fall within this category.

So what do you do when this happens?

Miami Herald (10/5/13): Shutdown Day 3: Food distributor stalled, charter boat captains docked

“Charter guides received a message from the National Park Service this week informing them that they are not permitted to take clients fishing in Florida Bay until the feds get back to work. That means that more than 1,100 square miles of prime fishing is off limits between the southern tip of the mainland to the Keys until further notice.”

“The closing affects not only fishing guides, but anyone with a license to conduct business in the park, including tour operators and paddling guides — anyone with a Commercial Use Authorization permit, said Dan Kimball, superintendent of Everglades and Dry Tortugas national parks.”

“Biscayne National Park is also off limits. Enforcement rangers will be on duty, Kimball said.”

“Capt. Mike Makowski, owner of Blackfoot Charters in Key Largo, estimates this eliminates 60 percent to 70 percent of his hunting grounds.”

This is not limited to Florida. The “Slam the Dam” race in Lake Mead, NV has also been affected. The federal government shut-down has led to the closure of the national park and the subsequent cancellation of the popular multi-race event.

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These are just two of many examples of water related commerce affected by the government shutdown. The problem is that the Constitution clearly states that the regulation of commerce remains with the Congress. The shutting down of waters of the US due to the budget debacle is not under the sole authority of the Executive Branch.

Congress does have the authority to authorize these shutdowns of commerce. However, I can find no instance where such authorization has been declared. It would appear the shut down authorization stems for the President. This could happen in the event of a national disaster or national security breach. However, no such events have been disclosed. So under what authority are the shutdowns legal?

There is one more water related issues. EPA has just furloughed its regulatory workforce. This is from a recent article from the Guardian.

“Nearly all of the agency’s 16,205 employees across the country, with oversight of air quality, industrial waste, water and sewage treatment plants, have powered down their computers, updated their voicemail, filled in their last timesheets, and left buildings as part of the shutdown.”

“It stinks,” said John O’Grady, a union representative at the EPA’s Chicago office. “No one is going to be out inspecting water discharges, or wet lands. Nobody is going to be out inspecting waste water treatment plants, drinking water treatment plants, or landfills – nothing. None of that is going to be done.”

Under the National Environmental Policy Act (NEPA) all federal government agencies are to prepare environmental assessments (EAs) and environmental impact statements (EISs) for associated Federal actions such as shutdowns. EAs and EISs contain statements of the environmental effects of proposed federal agency actions. NEPA’s procedural requirements apply to all federal agencies in the executive branch. So, can someone send me the EA or EIS for this shutdown? Clearly, the EPA thinks there are environmental consequences.

So who ordered the government shutdown?

According to NBC news it was Sylvia Burwell.

Who is Sylvia Burwell?

Sylvia Burwell who, as the new director of the Office of Management and Budget (OMB), sent the email that initiated the process that has closed national parks, visitors’ centers and even the “panda-cam” at the National Zoo. She was appointed by the President Obama six months ago on March 1, 2013. She previously served with the OMB for three years during the Clinton Administration in the 1990’s. More recently, she held various top-level positions at the Bill and Melinda Gates Foundation before moving on at the end of 2011 to become president of the Wal-Mart Foundation, which focuses on ending hunger in the U.S.

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The perceived authority for the shutdown arises out of the Antideficiency Act (Public law 97-258). This Act was originally conceived in 1870 wherein many federal agencies, particularly the military, would intentionally run out of money, obligating Congress to provide additional funds to avoid breaching contracts. The ADA has been amended many times and today is cited as the reason for a government shutdown when Congress misses a deadline for passing an interim or full-year appropriations bill. All furloughed federal workers are prohibited from doing any work. This even includes reading emails.

This ought to leave you with a few questions.

  1. How can federal workers who are furloughed enforce access to public facilities such as parks and lakes?
  2. Is the OMB closing of fishing grounds and recreational lakes in conflict with the Rivers and Harbors Act and quite possibly the Clean Water Act?
  3. Is OMB required to conform to NEPA in its actions?

The manner in which this shutdown is being handled is already having significant economic effects. One would hope that all parties involved in this highly political dispute would have the best interests of the average American. However if you will recall, the Founders deemed it necessary to craft a citizen’s Bill of Rights. Its purpose was to protect the governed from the government. We should not forget that.

Best,

– Marc

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