Back in May of this year Seanator Thune starting bringing attention to the Environmental Protection Agencies (EPA) attempt to regulate more water than it currently does. The expansion of the EPA’s powers is being done in partnership with the Army Corp of Engineers by redefining what is counted as Waters of the United States (WOTUS) in the Clean Water ACT (CWA). This is a potentially troubling expansion of power by the EPA, especially for farm and ranch states such as South Dakota.
Back in June I attended the SD AG Summit in Deadwood. One of the guest speakers during the Environmental and Regulatory Issues session was Michael Formica, Chief Environmental Counsel at National Pork Producers Council. During that session Formica spoke at length about what the EPA was attempting to do. Here is part of what I wrote from that session:
The goal of the EPA and Clean Water Act (CWA) activists, according to Formica, is to make sure “all water is fishable and swimmable”. Originally the CWA only gave power to regulate ‘navigable waters’. Yet over the years the EPA has gone beyond these limitations, and has won court cases to allow wetlands regulations on waters which aren’t navigable. Formica showed how the EPA was able to do this in the Chesapeake Bay TMDL. The move has allowed the EPA to regulate six states in the DC area because of connected waters. The means used by the EPA should be familiar to anyone that follows how the federal government works: if a state isn’t complying with the EPA’s water permit process they will withhold federal dollars from that state.
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Any wetland that can even remotely said to be connected with the Mississippi would fall under EPA control if they are allowed to regulate the Mississippi River Basin in the same fashion that has been done with Chesapeake Bay. And connected does not appear to be what most would think it means. It would include water that is adjacent, neighboring, or connected via a floodpain (whether or not there is water there or not).
Being a part of the Mississippi River Basin basically means virtually all (if not exactly all) water in SD will fall under the domain of the EPA. *** An interesting side-thought: How would this impact the current fight between sportsmen and land owners in the battle of water being in the public trust for the people of SD? This move by the EPA would theoretically work against both groups and take the water away from the public trust of South Dakota.
Today Thune has released an interactive map on his website showing just how each state would be impacted by the proposed EPA expansion. The map is well worth looking at for anyone that owns land, especially farm for ranch land. I’ve already shown it to a couple of farmers in NE SD today, and they were quite concerned to see their land would potentially be impacted.
Here is a screen shot of the whole state of SD. The red ares are the WOTUS areas the EPA would regulate if the change were to happen:
Basically the only areas not impacted are those that are barren of water. As I said above, this move by the EPA will theoretically impact all farmers and ranchers in SD.
What is most troubling about this move is that the EPA is doing it despite the wishes of Congress. On a legal level there is a huge battle going on to determine if the EPA can do this under the current language included in the CWA. I don’t think the courts should be deciding this. Instead it is up to Congress to properly utilize their oversight authority and do something to keep the EPA in line with what Congress has asked. Remember, it is not the job of the EPA to decide what it should do; rather it is the job of the EPA to enforce laws it has been empowered to enforce.
A good move by Congress would be to pass Senate Bill 2496 (S. 2496), the Protecting Water and Property Rights Act of 2014. Senator Thune is one of 38 cosponsors (all Republican) of this bill. The bill is actually pretty simple. It would forbid the EPA from enforcing the rule if they should pass it. This bill doesn’t actually change the CWA, rather it prevents the EPA from expanding their interpretation of the CWA without congressional approval. Senator Reid has not allowed this bill to come out of committee. So in January the Senate will likely have to re-introduce this bill. Hopefully with the Republicans in charge of both houses some headway can be made to reign back the EPA.
I would urge those with land in South Dakota to view the interactive map and find out if water connected to said land is about to be under EPA regulation. To many people this is not about clean water, but rather it is about a federal bureaucracy self expanding itself and giving itself power that it never should have had. Everyone wants clean water, but not everyone believes he EPA is the best method to protect natural resources such as SD water.
To end this post I will pass on part of what I wrote about during a recent political event with SD AG Marty Jackley. There are many (most?) areas I disagree with our AG on, but this is an area I believe he is well worth listening to. Here is the relevant part of my blog post about Jackley’s ramarks:
Another area of the AG’s office that Jackley talked about was government power. He said it is part of the AG’s office responsibility to stop the government when it has gone too far. Jackley called out the EPA for expanding its power without Congressional authority. And after the Supreme Court (SCOTUS) rules against the EPA they just do a “end-round” and find another way to do what they were never actually given authority to do. He says he is part of a groups of AG’s from both parties around the country that are trying to fight against the acts of the EPA. Jackley said environmental protection can best be handled at the local level by zoning authorities. He said the State DENRalso works to protect South Dakota’s resources. The closest EPA agent is in Denver according to Jackley. He says the SD DENR and the AG understand South Dakota and can better enforce environmental protections in South Dakota than the EPA can.
Hopefully Thune as a US Senator and Jackley as the SD AG can keep the battle going against the EPA.
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