The Swamp Stomp

Volume 15, Issue 20

On April 30, 2015 the US House of Representatives voted (241-181) to pass H.R. 1732 – Regulatory Integrity Protection Act of 2015.  This bill is now scheduled to move onto the Senate for a vote.  If they have the votes in the Senate it will move onto the President who as indicated that it will be vetoed.  To be frank this bill is entirely political and largely too little too late.  However there are some key points in this Bill that are worth discussing.

At the heart of the bill is the call for the complete cessation of rulemaking with regards to the definition of “waters of the US.” The Bill is broken down into three parts and is merely 12 pages long.  This is quite a relief as the Corps and EPA page count on the new “waters of the US” rule exceeds over 1,000 pages of text amongst a number of supporting documents.

Section 1 is the title, “Regulatory Integrity Protection Act of 2015.”  It is a bill to, “To preserve existing rights and responsibilities with respect to waters of the United States, and for other purposes.”

Section 2 calls for the withdrawal of the existing prosed rule.  “Not later than 30 days after the date of enactment of this Act, the Secretary of the Army and the Administrator of the Environmental Protection Agency shall withdraw the proposed rule described in the notice of proposed rule published in the Federal Register entitled ‘‘Definition of ‘Waters of the United States’ Under the Clean Water Act’’ (79 Fed. Reg. 22188 (April 21, 2014)) and any final rule based on such proposed rule (including RIN 2040–AF30).”

The few news agencies that have even bothered to pick up this story seem to end at this section.  You can check out the cutting edge news from places like Greenhouse Management, Springfield News Leader, Real Estate Rama, and the Daily Signal.  This does not make the front page of the NY Times by any stretch.  However, the next section in the bill is extremely interesting and a bit disturbing and largely undiscussed.

Section 3 calls for the development of a new proposed rule by the EPA and the US Army Corps of Engineers.  It specifically requires that the Agencies consider public comments, review and economic analysis of the rules and incorporate the “scientific” analysis done by the EPA “Science” Advisory Board.

I use big quotes when describing this report as scientific.  No scientific study was conducted.  The report is merely a mediocre cut and paste job of selected papers written by others.

The Bill does add two new dimensions to the process that thus far have not happened.  It designates the States and local officials as stakeholders and requires that their input be considered.  Many States already have afforded “waters of the State” protection to non-Federal jurisdictional waters.  This new provision in the Bill alleviates that awkward aspect of the Clean Water Act that provides for the State to establish jurisdiction over waters (Section 404 (g) of the CWA).  The states would relinquish their role in establishing jurisdiction to the federal government by enjoining themselves in the new process as stakeholders.  This would be as opposed to the current situation wherein they  self govern.  So much for state’s rights.

The second and most significant point in the entire Bill is that the Agencies must consider the rulings of the Supreme Court when crafting the new rules.  To be even more frank, I cannot believe that such a provision would have to be added to a Bill.  If the government adopts rules that are inconsistent with the Supreme Court’s rulings it is by definition unconstitutional.  The Supreme Court has ruled that the US government does not have universal reach in what it claims to be “waters of the US.”  The 2001 SWANCC decision is at the heart of the EPA/Corps “waters of the US” rule.

In 2001, The Supreme Court confirmed that there are some waters that are beyond the reach of federal jurisdiction.  In the preamble of the proposed EPA/Corps rule, the Agencies state that it was always the position of Congress that all wetlands are jurisdictional.  However, in 2001 the Supreme Court ruled that this is not the case.  Is it appropriate for the Agencies to speak for Congress and defy the Supreme Court?

In the 2012 Sackett case, Supreme Court Justice Alito called out Congress to show some leadership and develop a reasonably clear rule defining “waters of the US.”   This latest Bill is a far cry from that.  It basically goes back to the same two Agencies and asks them to start the entire process again using the same data set and expecting a different result.  You may recall what Albert Einstein said about the definition of insanity.

“Insanity: doing the same thing over and over again and expecting different results.”

At the heart of this entire mess is a clear lack of leadership.  Our elected representatives need to step up and stop hiding behind the Agencies to solve this problem.  It is the job on Congress to establish the limit of Federal jurisdiction and not the Agencies.  The Executive branch administers the laws as passed by the Legislative branch.  In all fairness to the Executive branch, these “waters” rules are not clear and it is understandable why they would seek clarity.  However, designating a private landowner’s property as being “of the US” is perhaps something left to the democratic process rather than mandated by a Federal Agency.

The need for clear rules about what is subject to federal jurisdiction is needed.  Our current rules are confusing and seem to keep heading to court.  However, in my humble opinion these rules should come from the consent of the governed rather than being mandated by the government for our own good.  It was just a few years ago when our government suggested that pouring oil on a wetland was a good idea for the control of mosquitoes.    See if you can find a copy of the “Winged Scourge” which was a government produced public information movie.   It was the governed that stood against this practice and had it repealed.  In the end it is the wisdom of the people rather than the whims of politics that shape our laws.  Politics is about pleasing the masses to maintain power.  Wisdom is the recognition of truth.

Have a great week!

– Marc