EPA Deletes “navigable” from Statute – States Sue Environmental Protection Agency flooded with lawsuits over controversial water rule
In yet another display of the Obama Executive Branch violated our Constitution by assuming Legislative Branch functions, Obama's Environmental Protection Agency rewrote federal law defining “Waters of the United States” (WOTUS). EPA illegally erased the word “navigable” from the statute and, in doing so, usurped longstanding states’ authority by including local seasonal streams, farm irrigation ponds, roadside ditches, and placed even “connective” dry lands under authority of the Clean Water Act! The new WOTUS rule was published the morning of June 29. This illegal effort to extend federal power potentially subjects every food, energy, transportation and manufacturing industry in the nation to high-handed regulation by one of the most reviled and least-trusted federal agencies: an EPA whose cadre of powerful “revolving door” officials is hired from anti-industry "green" groups. That very afternoon, June 29, twenty-nine angry and frustrated states teamed up in clusters to file lawsuits in U.S. District Courts.
Twenty-nine states, more than half the stars on the American flag, have filed lawsuits against the U.S. Environmental Protection Agency for redefining the “Waters of the United States,” or WOTUS. EPA rewrote the law, erasing “navigable” and usurping states’ rights by including local seasonal streams, farm irrigation ponds, roadside ditches, and even “connective” dry lands placed under authority of the Clean Water Act.
The WOTUS rule, published the morning of June 29, potentially subjects every food, energy, transportation and manufacturing industry in the nation to high-handed regulation by one of the most reviled and least trusted federal agencies, dreaded for its cadre of “revolving door” officials hired from anti-industry green groups.
The astonishing response began on the afternoon of June 29: states teamed up in clusters to file their lawsuits in U.S. District Courts. Utah and eight others filed with Georgia in Augusta’s U.S. District Court; Alaska and eleven others filed with North Dakota in Bismarck. Days later, Mississippi and Louisiana filed with Texas in Galveston; Michigan filed with Ohio in Columbus; Oklahoma filed alone in Oklahoma City.
Each state lawsuit asked a federal judge to declare the WOTUS rule illegal and issue an injunction to prevent the EPA and Army Corps of Engineers, co-administrators of the rule, from enforcing it. Each state also asked the judge to order both agencies to draft a new rule that complies with the law and honors state authority.
The WOTUS rule is so alarming because it enables agency bureaucrats to control virtually anything that gets wet, including a desert dry wash that gets a “drizzle” – actual EPA language criticized by House Science Committee Chairman Lamar Smith (R-Texas) at a Heartland Institute conference in Washington in June.
Heartland Research Fellow H. Sterling Burnett, PhD, commented: “Farmers, ranchers, developers, industries and individual property owners would now be subject to the EPA’s arbitrary, unsound and often incomprehensible regulatory system. It cannot be trusted.”
American Farm Bureau Federation general counsel Ellen Steen announced the group’s lawsuit with similar distrust: “When EPA and the Corps first proposed the rule in March 2014, they promised clarity and certainty to farmers, ranchers, builders and other affected businesses and landowners. Instead, we have a final rule that exceeds the agencies’ legal authority and fails to provide the clarity that was promised.”
More than a dozen national agricultural and production organizations also filed suit against EPA, including the National Alliance of Forest Owners, American Road and Transportation Builders Association, National Association of Home Builders, National Association of Manufacturers, and Public Lands Council.
The non-profit Pacific Legal Foundation sued on behalf of the state cattlemen’s associations of California, Washington and New Mexico. When contacted for comment, the New Mexico Cattle Growers Association’s president, Jose Varela Lopez, said what many ranchers feel. He told The Daily Caller, “My family has been on our land for 14 generations, each leaving it better for the next. Water is the source of all life and after all our generations, our water is clear and the land lives on. We have the history to prove that we are caretakers of the water and the land without the help of the Environmental Protection Agency.”
The alarm over WOTUS is not just about strangulation by regulation. Corruption has become a primary issue: evidence has emerged that EPA officials unlawfully lobbied crony green groups to send “one million comments” supporting the rule, according to a May 19 New York Times article. The Army Corps of Engineers examined the comments and the Senate found that 98 percent appeared to be non-substantive mass mailings.
Three lawmakers from the Senate Environment and Public Works Committee, Chairman Jim Inhofe (R-OK) and two subcommittee chairmen, Dan Sullivan (R-AK) and Mike Rounds (R-SD), immediately sent a letter to EPA Administrator Gina McCarthy demanding answers about rigging public input with YouTube videos, Twitter accounts and many other social media marketing tools.
Although the senators focused on misdirection of staff time and taxpayer funds, most of their concerns – except for obtaining a legal opinion prior to campaigning – can be sidestepped with the EPA’s powerful Left-green network, a fact that emerged coincidentally when Heartland Institute researchers looked into Rep. Lamar Smith’s “drizzle” remark.
The million-member Natural Resources Defense Council has a long crony history with EPA: it has had 33 employees on 21 highly influential EPA federal advisory committees from 2001 to 2013. The Sierra Club had 21 people on 12 EPA committees; National Wildlife Federation, 8 employees on 5 committees; National Audubon Society, 7 on 4; Friends of the Earth, 6 on 4. And so on. Even the huge NRDC couldn’t singly muster “one million comments” for WOTUS, but somebody could. Who?
Those five groups are among the 20 Left-green members of the Partnership Project, a Washington, DC-based non-profit campaigning company that compiles and enhances all 20 membership lists with detailed demographic data, keeps each precious list secret from other members, and operates expertly managed collaborative campaigns for multiple members that agree to pool resources for mega-projects. Such projects are funded by massive foundation grants with no government money involved.
Was the Partnership Project actually involved with EPA’s WOTUS campaign? We don’t know. We do know that several other high-dollar campaign powers are also available to the Left-green movement. It’s time to shine some light into those shadowy corners of American politics.
Ron Arnold is Executive Vice President of the Center for the Defense of Free Enterprise. He is a government accountability activist and an author and commentator. He pioneered investigative methods to expose money and power links of the American left in ten books and hundreds of magazine and newspaper articles. He is a veteran consultant for non-profit organizations and businesses faced with crisis situations and governmental abuses. This article originally appeared in The Daily Caller.