When Waters Aren’t Waters At All: Executive Branch Over-Reaching And Federal Land Use Controls (Part 2) – Guest Essayist: Andrew Langer
Waters, Regulation, And Political “Sleight Of Hand”
At its most-basic level, sleight-of-hand is the art of performed misdirection. A magician gets an audience to focus their attention on something shiny he is holding in one hand, distracting you from the trick he is attempting behind his back. If successful, the audience is fooled into thinking that something magical has happened, completely unaware of what tricks the illusionist has engineered to accomplish his feat. Woe be unto the illusionist who can’t complete his feat without exposing the artifices used to achieve it, or, worse, who public fails at their misdirection.
So it has been with this administration. Time and time again, the administration has tried to put shiny objects in front of the American people, to distract them from whatever illusory policy goal they are trying to achieve. That, or they have attempted to create a bizarre surreality—claiming that whatever reality the world might be facing simply isn’t real: the crisis in the Ukraine can be solved with diplomacy; doubling our vigilance can stop ISIS; the Keystone Pipeline won’t create jobs; and so on.
To hear the administration claim it, their controversial rulemaking on “wetlands” wasn’t controversial at all, that the hundreds of thousands of comments were all in support of the rule, that it would clarify, not confuse, and that it would benefit America’s small businesses, not harm them.
The biggest lie was this one: that the rulemaking would not increase the federal government’s “jurisdiction” over private property. But this claim flies in the face of the very core goal of America’s environmental organizations: to put as much land and water as possible under the regulatory control of the federal government.
For many years, the discussion was over what “navigable” really meant when the CWA was passed. For rational Americans, navigable always meant rivers like the Cuyahoga in Ohio, the Hudson in New York, the Anacostia in DC. Rivers that you could, literally, navigate.
But over the many decades of the CWA, that definition was stretched so thinly, that a dry patch of sand in the high desert of Nevada was considered a “navigable waterway”, subject to the jurisdiction of the CWA. As one might imagine, this marginal interpretation of the CWA’s jurisdiction led to numerous lawsuits, with the Supreme Court ultimately deciding that there were, in fact, limits to the federal government’s authority over wetlands.
The importance of this cannot be overstated. The High Court, in a trio of cases, affirmed the principles of federalism and limitations of centralized power—forcing the EPA, the Army Corps of Engineers, and the environmental movement to rethink their approached to wetlands control. Navigable, essentially, meant navigable—or, at the very least, it didn’t mean marginal, isolated wetlands.
The left’s answer to this confusion? To drop the term “navigable” from clean water parlance entirely! It was a brilliantly devious answer to a court finding that there were limits to federal power, and it underscored, again, that the left was less-interested in the rule of law and sound public policy and more interested in pursuing its own agenda of land-use control.
From a legislative perspective, it simply didn’t work. Attempts to remove “navigable” from statute failed, and the administration was left with their go-to option: using the rulemaking process. Which is what led to this week’s hearing.
One thing needs to be made clear: this rulemaking was done in response to a series of Supreme Court decisions that placed a limit on the left’s ability to put as much land as possible in federal control. It limited their ability, it did not limit or change their desire!
But the left cannot come out and say this—their narrative has to be that they are, for whatever reason, curtailing their efforts to intrude on land use decisions that are out of their jurisdiction. While many members of Congress, those interested in protecting both property rights and the environment, were willing to call out the EPA administrator and the head of the Army Corps of Engineers, none were so insightful as Sen. Mike Crapo (R-ID), who said this:
“As I see it, where the agency is heading right now… it appears that agency has flipped the Supreme Court,” employing the rationale of those on the court advocating for an expansive role of federal regulatory authority.
Crapo hit the nail on the head. The administration is attempting yet another public policy sleight of hand! They are claiming to be acting in accordance with Supreme Court caselaw, yet the reality is the opposite! What they are trying to do is create an entirely new way of gaining control over more amounts of land—insidious and devious and entirely unethical.
Rules like this have a real world impact. Placing land under regulatory control, requiring extensive permitting, has a cost on small businesses and working families. It keeps our economy mired in doldrums and keeps people unemployed. EPA ought to scrap this proposal, heed the advice of the Small Business administration and study the impact on the nation’s small businesses, and start again.
Most importantly, they need to be honest with the American people about what they are trying to do.
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