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Local View: Water and the rule of law

Local View: Water and the rule of law

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Do rules of law apply to entities as well as individuals?

A bill co-sponsored by Sens. Deb Fischer and Ben Sasse would help re-clarify the answer we all took for granted -- Yes! -- although, at first glance, the contents of S. 1140 would appear to be completely off the subject.

First a brief bit of history. Fueled in part by Rachel Carson’s 1962 publication of Silent Spring, President Richard Nixon proposed creation of an Environmental Protection Agency and issued an executive order allowing it to start operation on Dec. 2, 1970.

Two years later, Congress passed The Clean Water Act, charging the Environmental Protection Agency and Army Corps of Engineers with the responsibility for keeping the “navigable” waters of the nation safe from pollution. Navigable, however, has proved a problematic term for the agency, which has come to see it as a synonym for everything watery.

Two U.S. Supreme Court decisions, Rapanos v. United States and Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, sought – it was hoped – to give the EPA clearer guidance on what navigable is and is not.

Alas, no such luck. The EPA has now come up with a new rule, finalized this year, which broadens its definition of “waters of the United States” under The Clean Water Act to include nearly every pond and ditch in the nation.

“The Clean Water Act was written to govern interstate navigable waters,” said attorney Karen Harned of the National Federation of Independent Business (NFIB). “No one doubts that the Mississippi River or the Great Lakes are covered by these rules. The problem is that the agencies want their regulations to spread far upstream to places where even a toy boat couldn’t float.”

There is a bigger problem, however, with the EPA’s new rule than just its historic power grab, and that is the illegality of its creation.

According to regulatory expert Dan Bosch of NFIB, “They simply decided that they didn’t even need to consider the effects on small business. That analysis is required by law. It’s not optional.”

Even another agency under the same administration agreed -- a rarity that. In an October 2014 letter to the EPA and Army Corps, the Office of Advocacy in the U.S. Small Business Administration claimed “The rule will have a direct and potentially costly impact on small businesses. The limited economic analysis which the agencies submitted with the rule provides ample evidence of a potentially significant economic impact. Advocacy advises the agencies to withdraw the rule.”

Granting the EPA unfettered power over nearly every drop of water that falls from the sky might sell well in the urban areas along the Atlantic and Pacific Coasts, but Nebraskans have a better knowledge and longer experience in dealing with the EPA, being, as we are, a net-provider-of-commodities state, not a constantly taking one.

Whatever anyone’s thought of the EPA is, that is secondary to the most important questions of all: Are we a nation of laws, and do those laws apply to federal agencies as well?

Senators Fischer and Sasse are to be commended for their efforts on resolving that over-arching issue, and so is the bipartisan group of 40 senators lending their support to S. 1140. A similar measure, H.R. 1732, has already passed the U.S. House.

But you can’t help but wonder if it gets through Congress and signed by the president, will it make any difference to the EPA.

Bob Hallstrom is Nebraska state director for the National Federation of Independent Business.

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