Heads up: The EPA’s regulatory authority, coming to a stream or estuary near you?
posted at 5:21 pm on October 18, 2013 by Erika Johnsen
You may recall the egregiously costly saga of the Sacketts, the Idaho couple personally persecuted by the Environmental Protection Agency for developing their half-acre of lakeside private property that the EPA belatedly and arbitrarily deemed a “protected wetland.” The Sacketts fought the EPA’s demand that they either stop development and “restore” the property (with non-native plants!) or else face fines of up to $75,000 per day, but the EPA claimed that the Sacketts didn’t even have the right to seek judicial review against the EPA’s administrative compliance order, because the compliance order wasn’t their “final enforcement action” — which is basically made-up hogwash that roughly translates as, “We’re the EPA, we do what we want.” Long story short, the case made it all the way up to the Supreme Court, and the justices decided that the EPA cannot and should not engage in such “strong-arming of regulated parties” and that the Sacketts were certainly allowed to sue the EPA. Unanimous ruling. Boom.
Unfortunately, even though they can now sue, the Sackett’s tussle with the EPA over their small property continues unabated (“You would think that after beating them 9-0 that they would want to negotiate and get the thing done and let us get on with our life, but instead, we’re still dealing with the EPA in our life”), but their SCOTUS case has been one of several related to the Clean Water Act to make it all the way up to the high court in recent years. In September, the EPA finally made moves to, ahem, “clarify” Clean Water Act protections and nail down precisely what constitutes a protected wetland, via Roll Call:
The EPA took a giant step toward finally defining which bodies of water are subject to regulation under the Clean Water Act last week, when it filed a draft rule with the White House regulatory czar designed to settle the confusion created in recent years by a series of court decisions.
The legal battles have centered on the definition and scope of a seemingly innocuous phrase — what exactly are “waters of the United States”?
Judges and regulators have wrestled over how to interpret the term in the absence of legislative action to clarify it. Now, the EPA is not only proposing a regulatory solution — which is not yet publicly available — but is also conducting a scientific review to accumulate evidence to back up the penultimate rule.
That approach to implementing the Clean Water Act (PL 95-217) is the latest example of the Obama administration’s philosophy on environmental policymaking: Act when Congress doesn’t and take steps to shore up the approach against future legal challenges.
As the Sackett case so aptly demonstrates, however, this is the EPA we’re talking about, and they don’t tend to half-ass this kind of thing. Their rather wanton history of grabbing more authority for themselves via obscure rulemaking is a well-documented phenomenon, and the GOP is on it:
Republican leaders of the House Science Committee are accusing the Environmental Protection Agency (EPA) of rushing a rule to establish broad authority over streams and wetlands.
In a letter to the agency on Friday, Reps. Lamar Smith (R-Texas) and Chris Stewart (R-Utah) alleged that it is trying to initiate a “sweeping reinterpretation” of its jurisdiction in a potential new rule.
The regulation to expand the EPA’s oversight would give it “unprecedented control over private property across the nation,” they asserted. …
“In light of the significant implications this action would have on the economy, property rights, and state sovereignty, this process must be given more thought and deliberation to allow for important, statutorily-required, weighing of the scientific and technical underpinnings of the proposed regulatory changes,” Smith and Stewart wrote on Friday.
The EPA has yet to unveil their plans to the public, but the never-ceasing vigilance it takes to keep their regulatory agenda in check truly boggles the mind.