If you cannot get Congress to legislate, then regulate. This phrase seems to be a common trend among federal agencies these days, especially with the U.S. Environmental Protection Agency (EPA). If you want to hide what you are doing from the American people until it becomes public, put it in a “guidance” document. Guidance documents are not subject to notice and comment requirements under the Administrative Procedures Act. This is exactly what is currently happening within EPA and the Army Corps of Engineers (Corps). A “guidance” document will soon be released that, based on a draft version, would greatly expand the jurisdiction of EPA and the Corps over our waters. The guidance would accomplish this by giving EPA/Corps field staff a plethora of approaches from which to choose in order to support a jurisdictional determination, making a mockery of the Supreme Court’s decisions in the Rapanos and SWANCC cases that said the word “navigable” still has important meaning within the context of the Clean Water Act (CWA), since the word limits the jurisdiction of EPA and the Corps. After jurisdiction was limited by the Supreme Court in both the SWANCC and Rapanos cases mentioned above, the Clean Water Restoration Act (CWRA) was introduced in the House by former Congressman James Oberstar (D-Minn.) and by former Senator Russ Feingold (D-Wis.). Those bills would have removed the word “navigable” from the definition of “waters of the United States,” which would have given EPA and the Corps virtually limitless jurisdiction over every kind of water whether it was a puddle, ditch, mudflat or otherwise. The regulatory consequences for landowners of passage of the CWRA by Congress would have been more extensive permitting, preventing state land-use decisions and significant Endangered Species Act consequences. The National Cattlemen’s Beef (NCBA) and other agricultural organizations fought hard against passage of the CWRA over the past two Congresses, which fortunately resulted in the bills going nowhere.
What is EPA’s apparent plan since it was never passed into law? The answer is a “guidance” document to all field staff purporting to “reduce the complexity of EPA and Corps decisions… improve predictability…and increase consistency…” It certainly is consistent and predictable, since it seemingly makes every type of water body other than a manmade swimming pool subject to EPA/Corps jurisdiction and permitting requirements. In general, the guidance is less “guidance” and more of a menu of options for field staff to employ to support a determination that a given water body is a “water of the United States.” It also claims to be consistent with the CWA and the SWANCC and Rapanos Supreme Court decisions, but the truth is it twists the words of the court and uses them when it is convenient to support their approach. For example, it expands Justice Kennedy’s plurality decision in the Rapanos case to allow “similarly situated” waters to be aggregated together to demonstrate a significant nexus to a navigable water, thereby becoming jurisdictional.
Justice Kennedy’s words only applied this “similarly situated” concept to wetlands in the context of his opinion, not to all waters. The Supreme Court made it clear in both the SWANCC and Rapanos decisions that the word “navigable” is an important limiting definition with regard to EPA/Corps jurisdiction under the CWA. Under the draft guidance, “the agencies expect that the number of waters found to be subject to CWA jurisdiction will increase significantly compared to practices under the 2003 SWANCC guidance and the 2008 Rapanos guidance,” which this guidance will supersede. It is apparent that EPA and the Corps have chosen to disregard inconvenient Supreme Court decisions that limit their jurisdiction and are unsupportive of their agendas.
Instead of acting behind closed doors addressing issues like this that are of great public concern, EPA and the Corps should be willing to be transparent as President Obama promised during his campaign. They should not get away with picking and choosing which actions should be transparent and which should not based solely on their agendas. Thank goodness someone at the Office of Management and Budget leaked the draft guidance to Google several months ago. Otherwise, we probably wouldn’t know anything about their plans until the document is issued in final form. That’s unacceptable and no way to run a government.
NCBA urges all members of Congress to take a commonsense, good government stand on this issue and sign onto a letter by Congressmen Bob Gibbs (R-Ohio) and Tim Holden (D-Pa.) opposing EPA’s guidance document.
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whatz a boobdoggle... is that like a romontic escapade in the boon dox?
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