Opinion: EPA vs. the 4th of July

OPINION – Monday 10 senators including Utah Sens. Mike Lee and Orrin Hatch signed a letter sent to Environmental Protection Agency Administrator Gina McCarthy renouncing the EPA’s proposed rule to expand the agency’s jurisdiction over water. The letter cites several cases where environmental lawsuits threatened to end Fourth of July fireworks displays in San Diego, Lake Tahoe, and Lake Murray. If the EPA’s power is expanded as anticipated under their proposed rule, then their expanded scope of jurisdiction could threaten an even broader range of fireworks displays.

See the senators’ letter here: Senators’ letter to EPA re expanding Clean Water Act 20140701

I don’t feel like I need to make an extended argument about why we should not let the EPA and a gang of environmentalist lawyer thugs end the Fourth of July as we know it. However, to the extent that this threat causes Americans to take a closer look at the EPA’s proposed “Waters of the United States” rule, I am glad that these senators have brought this issue to our attention.

The rule was proposed on April 21 and it is currently in its public comment period, which closes on July 21. At the time that I am writing this, the rule already has 203,693 comments.

This probably makes this rule one of the most commented on rules ever. And what has prompted so much push back to this rule? Here is a random sample of a comment (the first one I clicked on) that was submitted by Richard Curtis, a farmer in Georgia:

I am the manager of a Family Limited Partnership which has about seventy Limited Partners. We moved to Wrayswood in 1948 and have been able to keep this family farm and the family growing since then. In 1948 four(parents and 2 children) of us moved to Greene County Georgia. We bought a rundown sharecropper farm that had no timber and was all red clay hills (bare) that ran the creeks and river completely red every time it rained. Things have changed since then with careful planning and God’s blessing we have no red clay hills but have several thousand acres of timber land, several hundred acres of pasture land for cattle and a couple of hundred acres in row crops. This compares to almost all of the land being in row crops when we moved here.We have many creeks and water sources that start on the land and several miles of interior roads.If this rule goes into effect we would lose control of a lot of our waterways that we have already paid good money for. It would also make some parts of the land worth less because we would not have free use of the water. I pray that you will withdraw this proposed rule as we are better caretakers of the land and water than a government agency will ever be.

I don’t have time to read through 200,000 comments, but I suspect the vast majority of them make similar points. I haven’t been shy about publicizing instances where the Bureau of Land Management has demonstrated that they are just as likely to cause irreversible harm to the land than private landowners would.

I think most Americans, when they celebrate the Fourth of July in some way, are also celebrating the freedom, the wealth, and the empowerment that comes from private ownership of property, and these are the fundamental American values that this EPA rule undermines. Losing our fireworks would be an embarrassing and shameful loss, losing the foundation of the American Dream would be far more threatening.

So if you haven’t commented on the “Waters of the United States” rule, perhaps a good activity this Fourth of July would be to visit regulations.gov and share your grievances with EPA. Declare your independence from the edicts of unelected bureaucrats.

Click here to comment

After all, the EPA admits that this rule is a response to their recent losses in the Supreme Court, where the justices ruled that the EPA exceeded their authority with an expansive definition of “navigable waterways.” If the EPA were to have their way, a dry wash in the middle of the deserts of Utah would be considered a navigable waterway.

Also, it is worth noting that in his concurring opinion to the Sackett v. EPA decision, Justice Alito said the following:

The court’s decision provides a modest measure of relief. At least, property owners like the petitioners will have the right to challenge the EPA’s jurisdictional determination under the Administrative Procedure Act. But the combination of the uncertain reach of the Clean Water Act and the draconian penalties imposed for the sort of violations alleged in this case still leaves most property owners with little practical alternative but to dance to the EPA’s tune. Real relief requires Congress to do what it should have done in the first place: provide a reasonably clear rule regarding the reach of the Clean Water Act. When Congress passed the Clean Water Act in 1972, it provided that the Act covers “the waters of the United States.” 33 U.S.C. §1362(7). But Congress did not define what it meant by “the waters of the United States;” the phrase was not a term of art with a known meaning; and the words themselves are hopelessly indeterminate. Unsurprisingly, the EPA and the Army Corps of Engineers interpreted the phrase as an essentially limitless grant of authority. We rejected that boundless view, see Rapanos v. United States, 547 U.S. 715, 732-739 (2006) (plurality opinion); Solid Waste Agency of Northern Cook County v. Army Corps of Engineers, 531 U.S. 159, 167-174 (2001). But the precise reach of the Act remains unclear.

In an effort to sympathize with the devil, it must be frustrating for the EPA who previously assumed essentially limitless authority over the nation’s water to now have to struggle in an environment of regulatory uncertainty that resulted from poorly drafted, and increasingly ancient law. We should not be surprised by their impulse to borrow the president’s pen and draft a rule to their liking which reinstates and formalizes the power that the Supreme Court took away from them.

However, it is worth noting that Justice Alito made it clear that Congress should be the institution that clarifies the ambiguities created by the Clean Water Act and not the unelected bureaucrats in the EPA. Maybe while you are submitting a comment to the rule you can tell the EPA that you agree with the Supreme Court: No regulation without representation!

I hope everyone has an enjoyable time watching fireworks this Fourth of July. As you watch the bombs bursting in air and the rockets with their red glare and you contemplate how blessed we are to live in this country, don’t forget the 200,000 mostly rural Americans who are prostrating themselves in supplication for relief from the unelected bureaucrat’s edict pen. You might just ask yourself what it was our forefathers declared independence from.

Submitted by Monte Wells, Blanding, San Juan County

First published in The Petroglyph July 2, 2014 | Edited and republished with permission


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  • J. July 3, 2014 at 11:57 am

    Yes, we definitely need to fight for the freedom to pollute our own waterways. Oye.

  • peter wilson July 3, 2014 at 12:59 pm

    Tradition has nothing to do with making decisions for the future – fireworks are extremely toxic from the chemical point of view, and pollutes (significantly) both the air, land and water around them. Just because July 4th has been celebrated traditionally with fireworks is not justification to continue to pollute and damage the earth for our children. Call me an environmentalist “thug” if you want. The science supports significant increase in carcinogens (heavy metals, organic, particulates) during and sometimes for days after fireworks.

    • Mike July 3, 2014 at 3:41 pm

      You must work for the EPA…

  • Paul July 3, 2014 at 6:23 pm

    Hey enviro dudes! Lets play a game of hide and seek. …you hide and we’ll pretend to seek. Y’all are about as useful to society as a good case of STD’s. You just have to ruin anything fun to gain control. Go play in a lightning field. Maybe you can stop the pollution from a lightning strike? ???

  • Burton July 5, 2014 at 5:33 pm

    I THIRD that! Let me ask you so called environmentalists a question. How big is your carbon footprint you leave on the earth? Do you drive, heat your home, fly on an airplane? Have a campfire with your kids? Use electricity to view your liberal crap that is powered by Obscene horrible coal? You guys don’t even realize the meaning of independence day because your too busy trying to be just like Europe. The country we broke away from so we could have freedom and liberty.

    • Ron July 6, 2014 at 10:23 am

      Well, actually, Burton, Europe is NOT “the country we broke away from.” Elementary geography lesson: Europe is a continent, not a country. I believe we broke away from England, which IS a country. And yeah, it was because we wanted more liberty to burn coal and trash the earth, right?

  • Freedom July 6, 2014 at 8:27 am

    How big of a carbon imprint do these Dixie-ites in their black smoke belching monster trucks make on this earth? How many resources do these mega-size families use up along with their burden on government social welfare programs?

  • Fred July 8, 2014 at 1:24 pm

    The problem with the EPA’s rule is not fireworks, and it’s stupid to focus on them. The problem is that it would declare my irrigation ditch a navigable waterway, and regulate it as such, which would pretty well destroy farming anywhere except where enough rain falls directly on the fields to support agriculture.

  • AeroPete July 9, 2014 at 5:35 pm

    Fred, you’re absolutely right. From guys who like fireworks (myself included) to guys who apparently don’t (Pete, up there at the beginning) we’re missing the forest for the trees. Although the proposed regulation would affect the use of fireworks, how ELSE might it affect the way we can and can’t use our resources? Like the farmer who converted wasted sharecropper land to beautiful and varied landscape who would lose the ability to put the water resources he’s developed to good use? Or the rancher who builds guzzlers and other water features for the benefit of livestock and wildlife both in this western desert? Hey, I’m all for being a good steward of the environment and if a good case can be made why not to celebrate Independence Day with fireworks, I could be persuaded. But, we certainly don’t need more unelected bureaucrats decreeing from on high what we shall and shall not do.

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