Last week, we looked at how the EPA manipulated the public comments process for its new rule defining protected waters under the Clean Water Act. The agency’s officials met behind closed doors and teamed up with left-wing environmental activists to get as many comments in support as possible. Like elections in pre-war Iraq, the drive was too successful to be remotely convincing; nearly 90 percent of the comments turned out to be in favor of the rule, a number that was then cited by EPA officials as evidence of how popular the rule was.
But as much as this rule was shaped by astroturfing, it will affect real people if it is allowed to take effect this summer.
If there is confusion about exactly what the rule does, the EPA can be blamed for that. In mounting its public defense, the agency has drawn up detailed fact sheets that attempt to minimize the additional lands over which the rule will give them power. Their propaganda for the layman, the purpose of which is to frighten the public into believing their drinking water won’t be clean without the new rule, does just the opposite. In one video posted online, EPA claims that “60 percent of our streams and millions of acres of wetlands” were unprotected or had an ambiguous status. These will now be regulated.
This propaganda provides needed context for what the rule will do. As the 2012 Sackett v. EPA Supreme Court case demonstrated, the agency is pretty much out of control in terms of its bullying and aggressive enforcement tactics against landowners even in cases where there is no real connection to water quality.
The new rule represents an attempt by the EPA to restore the near-universal power it wielded informally before the Supreme Court limited its activities last decade in two critical decisions. Its reason for doing so now is a 2006 Supreme Court split decision that offered two possible guidelines for regulators, who are naturally applying the guideline that gives them maximum power. And they want to finish this before Obama leaves office, naturally.
The biggest change in the rule is that it gives the EPA wide latitude to make “case-specific” determinations about any water within a 100-year floodplain or “within 4,000 feet of the high tide line or the ordinary high water mark” of a river, stream, or covered tributary. Landowners within a quarter-mile of a lake, river, stream, or tributary are pretty much at the agency’s mercy.
EPA and White House officials have gone out of their way to characterize the businesses that oppose the rule as bloodthirsty despoilers of the land, but federal treatment of farmers who oppose it is arguably worse. They must be irrational, it is implied, because the new rule does not change any of the Clean Water Act’s statutory exemptions for agriculture.
In fact, farmers oppose the rule because it will erode the already weak protections that those extremely narrow exemptions afford them. A wetlands determination on a farmer’s land can be devastating and costly even now, imposing stringent standards on their routine activities and requiring permits for bigger decisions. The new rule just makes a wetlands determination that much easier for the EPA to justify in court, which means that even if there are no additional requirements for permitting, many more permits will be required.
Already, majority bipartisan opposition to the rule has taken shape in both houses of Congress. Legislators should do everything they can to spike the rule and to forbid enforcement through the appropriations process until a new president with a less ideologically-charged EPA can rein the overweening agency in once again.