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NTF Issue Paper: cong119.doc. 11-14.

BACKGROUND. President Obama pledged to use his executive power to push through environmental and climate change radical regulations. Nebraska Taxpayers for Freedom has joined NE business, agriculture, and forestry groups and county governments to battle 88 pp. of new regulations promulgated by the EPA that would apply to roadside ditches, seasonal streams, flooded farm ground, flood plains, stock tanks, farm ponds, and mud puddles, because they all supposedly connect to downstream waters. The Obama Regime claims that uncertainty caused by 2 recent U.S. Supreme Court decisions gives it authority to increase the number and types of streams and wetlands subject to onerous federal regs under the Clean Water Act. Actually, the 2 rulings rebuked former EPA regs and restricted EPA regulatory authority. The first chastised the EPA for overreaching by attempting to regulate isolated wetlands. The 2nd ruled that the EPA overstepped its authority by attempting to regulate the discharge of dredged and fill materials into water. The court confirmed that the EPA held jurisdiction only over permanent bodies of water that are navigable, that the EPA had continued to assert its expansive regulatory claims despite court decisions. The EPA has shown an alarming trend to abuse power under the Obama Regime and has run roughshod over private homeowners, ranchers, farmers, loggers, miners, and developers, under the guise of protecting water purity. Despite losing both court cases, the Obama EPA claimed that ambiguities gave it added authority to regulate private land and isolated bodies of water. The rules seek to reverse these 2 rulings, which narrowed federal ability to enforce pollution laws for smaller streams and other bodies of water. NE Sen. Mike Johanns has called the EPA out of control, that the new regs would expand its authority enormously. Conservative Rep. Lamar Smith (TX.) called the regs the largest expansion of EPA regulatory authority.

THE SORDID EPA RECORD. The EPA already had infuriated NE rural families by flying planes over family farms and ranches to check for manure runoffs. It released to environmental radical groups private and personal information about NE farms, exposing farm families to harassment. The EPA laughably tried to regulate farm dust created by farm machinery and vehicles and restrict fuel storage. The Obama EPA failed to prevent farm children from doing chores or force farmers to obtain commercial driver licenses to drive farm vehicles. EPA regulations dictating how to construct farm homes fortunately died also.

The new rules will bloat EPA authority, stifle economic growth, and intrude on private property rights. These regs will limit 56 traditional NE farming practices heretofore exempt from EPA regs, to the chagrin of 90 farm and ag trade associations. Regs would force farmers to pay fees for environmental assessment and obtain permits, sometimes waiting over 18 months, to till soil around gullies, ditches, or dry streambeds. By redefining the thousands of drains, ditches, and low spots that fill farm lands and pastures as navigable waters, any soil or biological discharge into those areas would become prohibited without a permit. Environmentalists argue that these waters are critical to both fish and waterfowl, even if dry for parts of the year. A permit would be required for farming or construction that places any discharge into a body of water, like a wetland or stream. Farmers could not build fences, dig ditches, drain ponds, apply fertilizer, or cut hay without a permit. When the Clean Water Act began, Congress realized its potential detrimental impact on farmers and carved out specific exemptions for them for normal farming and ranching activities. However, the EPA regs erase these exemptions. The scientific report that the EPA relied on to justify its new regs never underwent normal peer scientific review. Planting seasons would see delay while the EPA slogs through its process to decide if a permit is required to plow or plant. Planting delays would lead to not planting and no income. State governors worry about drought management. State and local governments already regulate farming activities. Property owners and developers both claim that the EPA has gone too far to regulate isolated ponds and marshes. Homebuilders complain that the EPA, told to make alterations to rules so that builders would understand the few times that they needed a federal wetlands permit, instead expanded its definition of waterway to include rainwater ditches and canals. Most of the dry streams, only wet after severe rainstorms, are so small or temporary that they do not appear on maps. If a homeowner has a creek in the backyard and wants to expand the house or build a fort for the kids, he may first have to obtain an EPA permit. Construction and energy industries fear that the rules will delay and make more expensive projects for dredging, filling, and drainage. The EPA would have permitting authority over every wetland in Nebraska. It has violated the Constitution by enforcing the CWA that extends beyond the regulation of interstate commerce. The EPA seeks to control all surface and groundwater sources in the U.S. Liberal trial lawyers eagerly will sue developers and energy companies for supposedly polluting. Enviro-radical groups will file lawsuits to force EPA bureaucrats to apply strict enforcement of the new rules. The regs will raise costs and add delays for electricity plants, manufacturers, highway construction, and city and county activities. Since passage of the CWA in 1972, the EPA has twisted the law to claim unlimited jurisdiction over all U.S. waters, though it should regulate only navigable waters. It grossly underestimated compliance costs by relying on 20 yr. old permitting data, not accounting for inflation and costs of delay. Prices of individual permits could reach $78,000 per acre for family farmers and small businesses, and the burden would shift to landowners to prove need for a permit. If these regs take effect, they not only will infringe on property rights of millions but also set a dangerous precedent for federal regulation of private lands.

OBAMINATIONS. This July, the EPA administrator traveled on a public relations blitz to the Midwest, where she tried to blunt the heated criticism. Her conduct only antagonized Midwest farmers. Missouri ag groups complained about their exclusion from her meetings except one, that she barred the media from attending that one meeting. She derided farmers and accused farm groups of basking in the furor they created (American Farm Bureau Federation). She showed total ignorance about farm management. Independent news and scientific organizations accuse the EPA of trying to muzzle its independent scientific advisers by forcing them to funnel all public requests for information through the agency. The agency supposedly relies on independent advisory boards to sift through scientific information and advise the agency on policies such as setting new standards for water pollution. The EPA administrator refuses to stop these new regulations, a new federal water grab.

EPA CHEERLEADERS. Green radicals are working closely with Pres. Obama to clinch this power grab that imposes radical redefinitions. Environmental radical groups like the Sierra Club cheer these regs that expand, concentrate, and centralize federal power.

TAKE ACTION NOW. Gov. Heineman called the EPA an enemy of agriculture. Our state ag director considers the agency a threat to NE agriculture. If these rules activate, the EPA could regulate every body of water, including private lakes, ponds, and streams. This unrestrained federal intrusion is a serious threat to private property rights, state sovereignty, small businesses, and economic growth. Two conservative House bills to prohibit the EPA from enacting these rules hit a Senate roadblock, Democrats refusing to allow a vote on both bills. As usual, the EPA is circumventing Congress and writing laws itself. Urge your congressman and 2 senators to sponsor and support legislation prohibiting the appropriation of funds to study, promote, advertise, implement, or otherwise promulgate these rules. Tell them to prohibit the Army Corps of Engineers from participating in the water rules. Sen. Rand Paul (KY) introduced S 890 that strictly defines navigable waters and requires every federal agency that issues a regulation that diminishes the market value or economic viability of a property to pay the property owner twice the value of the loss. HR 3377 is the identical House version. Contact your rep and 2 senators today!

Research, analysis, and documentation for this issue paper done by Nebraska Taxpayers for Freedom. This material copyrighted by Nebraska Taxpayers for Freedom, with prior permission granted for its use by other groups in the NE Conservative Coalition Network. 11-14. C

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