EPA reaching too far; reform needed before they take the stars – April 2014

When we were growing up, adults often encouraged us to “think big” and “reach for the stars.”  As we grew older, the advice moderated somewhat to “just get a job.”  Those dream big ideals, however, seem to be alive and flourishing over at the Environmental Protection Agency (EPA). 

The Agency has continued to reach as far up the watershed as it possibly can and even after the U.S. Supreme Court has slapped their hands the Agency still is reaching for the stars.  In the Sackett case the EPA issued a compliance order against a couple from Priest Lake, Idaho charging them with placing fill into a wetland which was a “water of the US.”  The Sackett’s, represented by Pacific Legal Foundation with amicus briefs from several groups among them the American Farm Bureau, argued that EPA had no jurisdictional authority since the area had nothing to do with “navigable waters” or “waters of the U.S.”  After receiving this rejection of their actions by the Supreme Court the Agency then went back to the drawing board and attempted to define away the term “navigable waters” with a guidance document that bypassed the Administrative Procedures Act so that they wouldn’t have to be troubled by that bothersome public participation.

After the outcry from that effort, they went back to the drawing board and came back with a rule to define “waters of the U.S.”  After many groups received a leaked copy of the proposed rules it became obvious that the Agency was once again trying to overturn the Supreme Court’s limitations. 

When Congress wrote the Clean Water Act, they made sure it only applied to “navigable waters.”  Over the years the courts have expanded that definition to include areas that have never had anything remotely akin to navigation on them.  Dry draws that maybe have water running in them for a couple of weeks every three years or so were determined to be “navigable waters” by the courts.

After this expansion, the Supreme Court started limiting the scope of EPA’s reach in a series of cases which culminated in the recent Sackett decision.  However, given the tenacity with which the EPA tries to ignore those cases, it isn’t too surprising that they would try to figure out how to do an end around on court decisions they dislike.

What’s all of this got to do with Wyoming?  Well it appears that we may have our very own Sackett type situation in Uinta County.  Apparently the Johnson family decided to put a stock pond on their property back in 2010.   After constructing the pond they somehow or another came to the attention of the Army Corp of Engineers and the EPA.  The agencies then visited the Johnson’s property and took a look around.  After looking over the property fast forward to 2014 where the Johnson’s were sent a notice of violation of the Clean Water Act where they were told they could be fined up to $75,000 per day for the violation of putting fill into a water of the U.S.  That’s right seventy five thousand dollars per day.

There seems to be several parallels to the Sackett case over in Idaho and one only has to wonder why the EPA is going down this path again.  After Sackett there were some who felt that Congress should step in and further clarify, and yes even limit EPA’s authority, so that another citizen wouldn’t be faced with a similar situation.  Apparently, the majority in Congress hasn’t felt the need to reign in this Agency yet so now we are seeing a repeat, complete with draconian fines that will now cost the Johnson’s several thousand dollars in court costs to defend themselves against the EPA at best.

Without some serious reform of the EPA, the citizens in the heartland will continue to fear that the Agency will keep reaching for the stars when it comes to regulating everyone and everything.  But unlike when we were kids growing up, the consequences are extremely disturbing to a supposedly free society.

By Ken Hamilton, Wyoming Farm Bureau Federation Executive Vice President

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