You certainly couldn’t tell by its title, the Federal Water Quality Protection Act, or from any of the text, but a bill co-sponsored by Sens. Heidi Heitkamp, D-N.D., and John Hoeven, R-N.D., would do something vitally needed in Washington at the moment: restore the rule of law.
That S1140 takes direct aim at two federal agencies, which should by their very natures be instruments of the people’s will, is a sad commentary on the body politic of today. One agency in particular has been operating with an imperial attitude for longer than should be allowed: the Environmental Protection Agency.
North Dakotans have long experience with the excesses of the EPA and, by now, are fully aware of the agency’s latest rule greatly expanding the definition of — and their commensurate jurisdiction over — waters of the United States.
“The Clean Water Act was written to govern interstate navigable waters,” said attorney Karen Harned of the National Federation of Independent Business. “No one doubts that the Mississippi River or the Great Lakes are covered by these rules. The problem is that the agencies (EPA and U.S. Army Corps of Engineers) want their regulations to spread far upstream to places where even a toy boat couldn’t float.”
It had been assumed that two U.S. Supreme Court cases the EPA was on the losing end of, Rapanos v. United States and Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, might have humbled the agency and established, once and for all, generally accepted limitations on jurisdictional expansion via the rule-making process. Not so.
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Not so, either, the Regulatory Flexibility Act of 1980 and subsequent amendments to it that require all federal agencies to consider the impact to small businesses of any rules they promulgate.
Commenting on EPA’s new rule, regulatory expert Dan Bosch of the National Federation of Independent Business said, “The process was rigged in favor of the agencies. 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.”
The Office of Advocacy at the U.S. Small Business Administration agrees. In an October 2014 letter to the EPA and the corps, it said, “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.”
So there you have it. When EPA is not ignoring Supreme Court limitations on it, it is blithely disregarding rule-making laws required of it.
S1140 would stop the new rule from taking effect. A similar measure, HR1732, has already passed the U.S. House. Sens. Heitkamp and Hoeven are right to take a lead on this issue. The new rule also looks ripe for a legal challenge.
You have to wonder, however, if any of it will get through the palace gates of the EPA and into the ears of the royalty.
(RaeAnn Kelsch is North Dakota state director for the National Federation of Independent Business.)