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What is the Legal Case Against EPA’s Water Rule?

Now more than ever, every time it rains, one Indiana farmer fears his land will be declared a federally-regulated body of water:

After a recent rainfall, Charlie Houin looked out over one of his cornfields in Marshall County as a clear stream of water flowed beneath him. With the summer’s high rain levels flooding fields, drainage systems and the streams that carry excess water away are crucial for farmers to maintain healthy crops.

But Houin, and farmers across the country, are now in a fight for control over these small waterways — battling a new rule in the Clean Water Act opponents say will be overly burdensome and costly to the agriculture industry.

[ … ]

Houin said he not only sees this as one of the EPA’s biggest land grabs in history, but he’s worried the permit process is going to be crippling when he needs to repair ditches, waterways and drainage systems for his farm. When you have only one chance a year at the planting season, he said, having farmland and waterways tied up in an approval process will be costly.

Worry about federal overreach isn’t limited to farmers and ranchers. Many other businesses also oppose the agencies’ regulatory overreach.

This has driven business groups to take EPA and the Army Corps of Engineers to federal court.

The U.S. Chamber, the National Federation of Independent Business, the Portland Cement Association, the Tulsa Regional Chamber, and the State Chamber of Oklahoma filed suit to stop the new Waters of the U.S. (WOTUS) which dramatically expands the definition of federally-regulated “navigable waters” covered by the Clean Water Act.

They make the case that the water rule gives the federal government unprecedented and unconstitutional regulatory authority over nearly every body of water in the United States and undercuts state and local government sovereignty.

Here’s a breakdown of their argument.

Violates the Clean Water Act

The plaintiff’s argue that the new waters definition goes beyond its authority under the Constitution and the Clean Water Act, because it “confers jurisdiction to the Agencies over waters that are not ‘navigable waters.'”

Under the Clean Water Act the federal government has jurisdiction over only “navigable waters.”

Initially that was defined as bodies of water where interstate transportation or commerce could take place. However, over the decades, the regulatory creep set in and that definition broadened from lakes and rivers bordering states (literally interstate waters) to include tributaries and wetlands that abut regulated water bodies. WOTUS is the latest expansion.

Through the water rule, “thousands of miles of intrastate waters that have no substantial effect on interstate commerce” are now under federal regulation, the plaintiffs note. This includes wetlands, streams, ditches, ponds, and bodies that only occasionally hold water.

This broad federal jurisdiction is what has farmers, ranchers, home developers, other businesses upset.

To understand the plaintiffs’ legal argument, you need to know about a 2006 Supreme Court case, Rapanos vs. United States. In it, the court established two tests for determining if a body of water falls under federal jurisdiction.

The first is “continuous surface connection.” In his plurality decision, Justice Antonin Scalia wrote that the Clean Water Act requires that a body of water have a “continuous surface connection” to another federally-regulated body for federal regulators to have jurisdiction.

The second is “significant nexus,” found in Justice Anthony Kennedy’s concurring opinion. In order to be considered a navigable water, a body of water must “significantly affect the chemical, physical, and biological integrity” of “waters that are or were navigable in fact or that could reasonably be so made.”

The water rule fails both tests, the plaintiffs explain:

[C]ountless waters, wetlands, and normally dry lands will be classified as ‘waters of the United States’ despite their complete detachment–both on a surface level and on a chemical, physical, and biological level–to any navigable water.

The Matrix Defense

One example of how EPA fails to meet these tests is by employing something I call the “Matrix Defense.” EPA claims it can determine a federally-regulated tributary to a body of water simply with the use of computer “desktop tools that provide for the hydrologic estimation of a discharge sufficient to create an ordinary high water mark.” Virtual reality trumps physical reality, as the filing explains:

“In other words, if a computer model suggests that a feature has enough flow to create a bed and bank and ordinary high water mark, the Agencies can determine that that feature is a ‘tributary,’ even if the physical indicators have not been observed in the field.”

Neo could stop bullets, but he didn’t have that this kind of power.

Unfortunately for EPA, this tactic doesn’t satisfy either Justice Scalia’s continuous surface test or Justice Kennedy’s significant nexus test.

WOTUS is Unconstitutional

The water rule doesn’t just violate the Clean Water Act. The plaintiffs argue it also violates the 10th Amendment, which states:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

State governments have the authority to regulate land and water in their states. The Clean Water Act affirms that states have “the primary responsibilities and rights … to plan the development and use … of land and water resources.”

However, with the water rule, the federal government claims regulatory authority over nearly every body of water in America. Waters, including ditches, canals, ponds, and wetlands, as far as 4,000 feet from a navigable water can be regulated by the federal government.

This violates the 10th Amendment. As the plaintiffs state:

The Supreme Court requires a ‘clear and manifest’ statement from Congress to authorize [such] an unprecedented intrusion into traditional state authority.

State and local government sovereignty gets squeezed as the federal government expands its reach.

EPA Avoided Looking at the Economic Effects on Small Businesses

Not only does the water rule conflict with the Constitution and the Clean Water Act, regulators didn’t follow the proper rulemaking process.

The plaintiffs point out that EPA ignored the Regulatory Flexibility Act (RFA) which requires federal agencies to analyze the effects of proposed regulations on small businesses, organizations, and governments.

EPA claims it didn’t have to do this because the water rule “will not have a significant economic impact on a substantial number of small entities,” and it “will not affect small entities to a greater extent than the existing regulations.”

The Small Business Administration’s Office of Advocacy disagreed:

[T]he Clean Water Act and the revised definition proposed in this rule directly determine permitting requirements and other obligations. It is unquestionable that small businesses will continue to seek permits under the Clean Water Act. Therefore they will be subject to the application of the proposed definition and the impacts arising from its application.

The “fundamentally flawed” rulemaking process drove SBA to ask EPA to “withdraw the rule and that the EPA conduct a Small Business Advocacy Review panel before proceeding any further with this rulemaking.”

EPA ignored the SBA along with similar comments from the U.S. Chamber and other business groups and went ahead with finalizing the new definition.

It’s Hard to Know How to Obey the Law

Finally, the water rule is too vague. If people can’t understand the regulation, how are they supposed to behave lawfully? The water rule “fails to provide fair notice of what conduct is prohibited by the civil and criminal provision of the Clean Water Act and grants overly broad enforcement discretion to” federal regulators, writes the plaintiffs.

To see how this applies in the real world, let’s go back to Charlie Houin’s story:

The water rule states that a “tributary must show physical features of flowing water — a bed, bank and ordinary high water mark — to warrant protection,” as well as connecting to a larger body of water.

Discussing the rules with The Tribune, Houin stood near one of his small waterways that, he said, he has always thought of as a ditch and has never had regulatory issues with. But based on the EPA’s definition, Houin’s small “ditch” could be considered as a tributary because it has continually flowing water that empties into the nearby Yellow River.

This is a major problem, [Justin Schneider, senior policy adviser for the Indiana Farm Bureau] said, because no matter what a farmer may think a waterway is, it comes down to the EPA’s interpretation. A farmer could be in violation and not realize it, he said, calling it “an issue with potential for big repercussions.” Beyond having to obtain expensive federal permits, the Indiana Attorney General’s Office said farmers could face civil penalties up to $37,500 a day for violating the new rule.

Citizens “cannot reasonably determine based on the face of the relevant statutes and regulations what is required of them,” plaintiffs state.

Let’s step beyond how the water rule violates the Constitution and ignores federal law. It also will shower uncertainty over every property owner.

An economy can’t function effectively if people fear that taking some ordinary action like filling in a ditch will require costly permits or unleash the fury of federal regulators.

The easier path to take is to not invest in and improve one’s business. Don’t build an addition to a factory that could employ more people. Don’t build a housing development and increase the housing supply for families. Don’t touch that gully the rain cut in the corn field. Instead, let it go fallow.

That may satisfy a bureaucrat in Washington, D.C., but it means frustration for Americans having to live under those rules.

Meet Sean Hackbarth @seanhackbarth Follow @uschamber

EDITORS NOTE: The featured image is of a Holstein cow grazing by a pond in Lancaster, NH. Photo credit: Bloomberg.

America Has Lost Its Identity

There is no example in the history of the world of a civilization, culture, or country that has survived without an intact family unit.

Historically, this has meant father, mother, sister, brother, grandparents, and sometimes other extended family members.  With the onslaught of the Industrial Revolution came what we now know as the nuclear family-father, mother, brother and sister.

During the 19th and 20th centuries, immigrants flooded into America in an effort to flee oppressive governments back home or to pursue greener pastures here.

It was implicitly understood that English was the de facto official language, being a good citizen was expected, and contributing to the betterment of America was one’s civic and moral obligation.

Children were taught to go to school, get a job, get married, and to raise a family.  These principles served us pretty well as a nation until recently.

Now, I no longer know what it means to be an American.

People come to this country, legally and illegally, and refuse to speak English.  Judges and politicians are redefining the family unit; gender is no longer determined at birth; the government is invading every aspect of both our public and private lives.

How is it possible for mankind to be so arrogant as to say their gender is no longer determined at birth, based on the anatomical features present when they are born?

Now that Mother Nature is getting up in age, she is beginning to make all sorts of mistakes.  Boys born with penises are claiming to be girls; girls born with vaginas are now claiming to be boys.

Some are even going so far as to say there is no longer a thing called gender; there is no male or female; but rather one can “self-identify” from moment to moment as to what their gender is.  Even President Obama has demonstrated his belief in this foolishness.  A few months ago, he made bathrooms in the White House “gender neutral.”  Bathrooms are no longer labeled as male or female. You can now choose which one to use based on how you “self-identify” at that moment.

I can’t help but be reminded of the Greek philosopher, Protagoras.  I studied him while attending Oral Roberts University.  He is considered the father of relativism, which basically said there are no absolutes.

Protagoras is best known for his statement, “Man is the measure of all things: of the things that are, that they are, of the things that are not, that they are not.”  So this insidious notion of “self-identifying,” is an extension of Protagoras’ philosophy.

According to this view, there is no God or any higher power.  Each individual is the all and be all of their existence.  There is no common moral framework by which man should live by; every man lives by his on individual moral code.

By believing thus, a society loses the very glue that keeps a people united.  Typically, language, moral values, and patriotism are some of those common threads that make a society cohesive.

I currently stand at five foot eight inches tall; but I currently self-identify as six foot eight inches tall, therefore, I should legally be recognized by that which I believe, regardless of whether it’s based on facts.

As crazy as the above sounds, is this not what Rachel Dolezal did.  She is the White woman who is the head of the Spokane, Washington chapter of the NAACP.  Last week she admitted that she was born White, but now she self-identifies as Black; thus, making her Black.  Even on legal documents she has been listing her race as Black, though her own birth certificate states that she is White.

She should be prosecuted to every extent of the law and the NAACP should have fired her immediately.

But, as usual, the NAACP’s leadership showed why no one takes them seriously as an organization.  Here is what their national office had to say about Dolezal, “One’s racial identity is not a qualifying criteria or disqualifying standard for NAACP leadership.”  So, I guess lying is now a permitted quality for a leadership position with the NAACP.

Since there are no longer any absolutes, we now have a country where sex is no longer determined at birth and race is no longer determined by genetics or ancestry.  I can claim to be seven feet tall, though I am only five foot eight; but yet have the legal standing of being a seven footer simply because I say it’s so.

Would you go to a medical professional who only “self-identifies” as a physician; having never attended medical school?

A society without rules is a society in chaos.  You have little kids thinking they are homosexual; you have people in the country illegally who think they have a constitutional right to be here; entertainers like Kanye West and Omar Epps think it is OK for them to wear dresses.

Values are the DNA of a society and America has lost its values in the name of individual freedom.  Freedom only works within the context of shared rules or beliefs.

The game of basketball is a good example.  Everyone that plays the game agrees to a common set of rules by which the game is played.  Within these rules are opportunities for individual players to express their uniqueness.

But without a common acceptance of the rules of the game, basketball cannot exist.

So it is with America; without common acceptance of rules dealing with sexuality, morals law & order, we will no longer exist as a society.

RELATED ARTICLE: The Lie Obama Keeps Repeating About the Poor in America

Florida: Groupthink on the Sarasota County School Board

school board compositI am always fascinated by how politicians, once elected, don’t do what they promised in order to get elected. Rather they become part of “the system”. They become influenced by bureaucrats, forget they represent their constituents and pass laws, rules, and regulations which harm their very constituents. They in effect become group thinkers.

Groupthink is an oxymoron. You see it is not about thinking, rather it is about the group (collective). Wikipedia has this definition of Groupthink:

A psychological phenomenon that occurs within a group of people, in which the desire for harmony or conformity in the group results in an irrational or dysfunctional decision-making outcome.

The Sarasota County School Board members, with one exception, suffers from groupthink. Because of this it has resulted in irrational or dysfunctional decision-making outcomes. One example is the misuse of tax dollars.

YourObserver.com staff in an op-ed stated:

It has been a month and a half, but many of you still will remember the cyclone that whirled about the Sarasota County School Board over its selection of a construction manager for the Suncoast Technical College’s North Port campus.

At the recommendation of Superintendent Lori White, the board voted 4-1 to bypass its selection committee and go with Willis Smith Construction.

The lone “no” vote came from Bridget Ziegler, the rookie board member who was elected last November.

The day after the vote, Ziegler, age 32, posted her rationale and comments on her Facebook page (see box).

Whoa.

At the April 21 School Board meeting, Ziegler’s fellow board members delivered to Ziegler what easily can be called a smackdown, chastising her for seven minutes for speaking out and not following the other members’ board protocol.

Talk about taking Ziegler to the woodshed. “Hey, missy, you need to learn a thing or two before you go spouting off.” That’s the way it comes across.

Among the disturbing comments came from board member Jane Goodwin: “I just hope in the future you’ll … consider that you have a loyalty to this board and … we represent the Sarasota County School Board …”

So what we have on the Sarasota County School Board is one thinker, Bridgette Ziegler, and four followers. The issue is that the Sarasota County School Board selected a vendor whose bid was $4.5 million higher than the lowest qualified vendor. The Sarasota Herald-Tribune’s Shelby Web reported, “The board voted 4-1 to follow Superintendent Lori White’s advice to hire Willis A. Smith instead of A.D. Morgan Corp., which had said it could do the job for about $4.5 million less.”

Does this not appear to be a dysfunctional decision? Aren’t the board members supposed to be good stewards of the people’s property (tax dollars)?

Why do we see politicians at every level become group thinkers? 

Perhaps Frédéric Bastiat’s  who penned the seminal work The Law said it best. He pointed out that the relationship between the rulers and the ruled becomes distorted, and a sense of systemic injustice pervades the culture. Bastiat observed this in horror in his time, and it’s a good description of what happened at the Sarasota County School Board:

The law has placed the collective force at the disposal of the unscrupulous who wish, without risk, to exploit the person, liberty, and property of others. It has converted plunder into a right, in order to protect plunder. And it has converted lawful defense into a crime, in order to punish lawful defense.

The collective must silence those who think – namely Bridgette Ziegler. However, I do not believe Ms. Ziegler will be silenced.

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EDITORS NOTE: The featured image is by Artsy Magazine.

Full Stream Ahead: Why EPA’s Water Rule Goes Too Far

The Obama administration didn’t listen. Instead, it went ahead with its regulatory overreach over America’s waters. This worries farmers, ranchers, and other businesses.

EPA and the Army Corps of Engineers released their final Waters of the United States (WOTUS) rule–known as the “Clean Water Rule” in EPA lingo–that claims jurisdiction over vast swaths of the country.

In a statement EPA Administrator Gina McCarthy claimed, “This rule will make it easier to identify protected waters.” In reality, the rule does this by claiming federal jurisdiction over a huge number of waters.

Inside the 299 pages of regulations, definitions, explanations, and justifications for the rule, “adjacent” waters now under federal regulatory authority “include wetlands, ponds, lakes, oxbows, impoundments, and similar water features” that are “in the 100-year floodplain and that are within 1,500 feet” (five football fields) of a navigable water. The entire body of water is “adjacent” even if only a portion of it falls within the 100-year floodplain or within 1,500 feet of a navigable water.

While EPA and the Army Corps claim that WOTUS clarifies what waters are under federal jurisdiction, in agriculture’s case, nothing is clarified. The rule states [emphasis mine]:

Waters in which normal farming, ranching, and silviculture activities occur instead will continue to be subject to case-specific review, as they are today.

In fact, under this new definition bodies of water or wetlands over three-quarters of a mile from an navigable water could fall under federal jurisdiction if the federal government decides that it significantly affects another body of water [emphasis mine]:

[W]aters within 4,000 feet of the high tide line or the ordinary high water mark of a traditional navigable water, interstate water, the territorial seas, impoundments, or covered tributary are subject to case-specific significant nexus determinations.

The agencies claim they “do not anticipate that there will be numerous circumstances in which this provision will be utilized,” but who is to say the ever-growing Regulatory State won’t make this its default tool in its water regulation toolbox. Regulators’ best wishes are no guarantee that an agency’s power will be limited.

With federal jurisdiction comes costly federal permitting. “Over $1.7 billion is spent each year by the private and public sectors obtaining wetlands permits,” wrote the U.S. Chamber and 375 other associations in a comment on WOTUS to EPA and the Army Corps.

William Kovacs, the U.S. Chamber’s Senior Vice President of Environment, Technology, & Regulatory Affairs, said the process the agencies used to write the rule was “fundamentally flawed.”

Since issuing the proposed rule for public comment in April 2014, the agencies have somehow maintained that the proposal will have no significant regulatory or economic impact, and in fact the agency is simply ‘clarifying’ the current state of federal jurisdiction over waters. Such statements fly in the face reality.

Despite appeals from constituents and lawmakers across the country; countless business owners, farmers and industry leaders; and the Small Business Administration, the EPA and the Army Corps of Engineers failed to conduct any meaningful regulatory or economic impact analyses prior to issuing a final rule.

The Chamber filed lengthy public comments identifying exactly how the proposal could affect businesses of all sizes, including local municipalities, and requested the agencies convene a small business review panel to study and evaluate those impacts. Numerous state, local and business stakeholders and the Small Business Administration (twice) echoed that request, to no avail.

In a blog post prior to WOTUS being released, Kovacs worried that the water rule “would put [EPA] effectively in charge of zoning the entire country.”

Kovacs isn’t alone in criticizing the rulemaking process. While explaining that WOTUS will expand federal authority, Charles Maresca, Director of Interagency Affairs for the Small Business Administration’s Office of Advocacy, told a Senate Committee it was “incorrect” for EPA and the Corps to claim that the regulation won’t have “a significant economic impact on a substantial number of small businesses.”

It was no holds barred in the administration’s defense of its controversial rule. President Obama’s top environmental advisor Brian Deese said, “The only people with reason to oppose the rule are polluters who threaten our clean water.”

Tell that to farmers, ranchers, home builders, and other businesses. They understand that clean water means everything to their customers and their businesses. Federal regulators going over the heads of local and state officials accomplishes little but adding more barriers to job creation and economic development.

With WOTUS businesses will be up a creek without a paddle.