Gary Wisenbaker Blog
Gary Wisenbaker
The politics of regulation, principle and reconciliation
Regulation Nation in the courts

The will to flex GOP majority it there?

While the GOP caucus in the House of Representatives plays leadership musical chairs and the same torch-and-pitchfork-mob that pushed them there turns its attention to the Senate for more of the same, a real fight with real consequences for all Americans is taking place in the courts.

The battle is over the “Waters of the USA” rule, first proposed last summer and which the EPA began implementing in August.  The rule redefines and expands the term “navigable waters”.
And the breadth of the EPA’s reconfigured rule is breathtaking. 

As originally intended when passed in 1972, the Clean Water Act authorized the EPA to regulate only those waters that were interstate in nature, not intrastate.

“Congress did not want EPA bullying farmers over small depressions in their land that occasionally hold rainwater [or] bullying people who dig a ditch to help drain their land, ” said Jay Lehr, science director for the Heartland Institute, adding, “ [The] EPA is attempting to stand the CWA on its head as it continues to seek more money and power.”

Imagine that.  A federal bureau seeking more money and power.

The revised rule redefines what bodies of water are subject to federal regulation and would now include “all tributaries, adjacent waters, wetlands and other waters.” 

The depression in your backyard that after a rain sometimes has enough water to flow into a ditch and then into a stream, which empties into a creek, and which runs into a river is subject to regulation under the rule. 
Get a permit before you fill it in.  Or else.

The CWA allows the EPA to issue administrative orders against violators, and seek civil or criminal penalties when necessary. Thus, one can be fined and imprisoned not for transgressing any law but an administrative rule.

This job killing regulation requires construction companies, farmers and other real estate intensive enterprises, the vast majority of which are family owned, to obtain expensive, time consuming permits not previously required. 

In Georgia alone, the rule puts an additional 40,000 miles of Georgia streams under federal control.  And that means roughly 57 percent of all Georgia waterways are now subject to direct federal regulation. 
That’s a lot of intrastate water controlled by an act intended to affect only interstate waterways.

And Georgia Attorney General Sam Olens recognizes it for what it is: a federal government effort to transfer more property rights away from the private landowner and states to reinvest those rights in the federal regulators.  He’s fighting it and recently allied Georgia with 33 other states in lawsuits nationwide to block the EPA from enforcing the rule.

This regulation, however, elucidates more than just a money and power grab by a federal agency, it illustrates the sheer arrogance of an administration and an agency. 

Obama’s EPA rule is in open defiance of two Supreme Court rulings in the last 15 years finding these new definitions overly broad.  That this administration chooses to disregard the rule of law comes as no surprise.

The House, for its part, has passed bipartisan legislation seeking to block the rule’s implementation.  Similar measures are moving through the Senate. Obama, of course, has vowed a veto.

Fine, let him have at it.

Come December, the Republicans need to flex their majority political muscle and debate and pass a budget reconciliation bill that repeals this outrageous EPA rule change, defunds Planned Parenthood, and bans abortion after 20 weeks.  Let the Democrats vote against it and the president veto it.

The House and Senate leadership must realize that their present penchant for inside baseball on leadership and legislation serves the country absolutely no purpose.  

They have a chance to do something worthwhile: stand up for principle and rein in the regulators.  

As the insurance spokesman says, “That’s what you do.”


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