The Power to Tax (and Permit) is the Power to Destroy

Yesterday, the EPA issued the long-awaited draft rule on “Waters of the U.S.” – you can find all 300+ pages here.   I’m still wading through it, so will reserve final judgement on its details until I’m done digesting it.  However, the rule, if adopted, will expand the scope of the federal government’s authority to many areas on the landscape (ephemeral and intermittent streams, and “other waters”) that have been beyond the government’s reach since the SCOTUS decision in the Rapanos case.

I’ve been quite clear about my concern regarding the expansive authorities of the federal government under the Clean Water Act, and outlined them a few years back with Jim Murphy here in, Repairing the Clean Water Act, when Congress sought to expand authority legislatively.  My concern should not be construed as a lack of concern regarding the importance of these resources nor a belief that they do not need to be protected; rather, my concern is rooted in the importance of the rule of law, constitutional principles, and the fact the federal government has demonstrated a propensity of poor judgment in implementing and enforcing the Clean Water Act, but particularly under Section 404 of the Act, which is principally, although not entirely, the thrust of this rule.  Case in point, the recent Sackett decision, which I discussed here at Protecting Water Resources While Safeguarding Against Government Overreach, is a case where the SCOTUS ruled 9-0 against EPA for an arbitrary and overzealous prosecution of a family in Montana.  You can read more about it here at the Pacific Legal Foundation, who represented the Sacketts.  And just a few weeks ago, we learned of a Wyoming family that EPA is targeting –  threatening them with $75,000 per day – for constructing a stock pond on their ranch.  

It used to be the power to tax was the power to destroy, increasingly, it’s becoming the power to permit.  Admittedly, good governance and good government demand that the jurisdiction of the federal government be clarified through a rule-making, as opposed to mere guidance.  Greater clarity is needed for the agency to do its job properly and for the public, industry, states and local governments to understand where the federal government’s authority under the Act begins and ends.  The challenge for the Agency is not only whether this rule will pass legal muster but whether the Agency can be entrusted to exercise its enormous authorities competently, fairly and judiciously.  Only time will tell.