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By J. P. Tangen
Special to Mining News 

Solons seek clarity on 'waters of U.S'

Though it is too soon to break out the champagne, Congress hopefully will pass bipartisan legislation to bring the EPA to heel

 

Last updated 5/17/2015 at Noon



After six years of lackluster performance under the leadership of Sen.

Harry Reid, D-Nev., Congress now appears poised to seize the initiative and rein in the U.S. Environmental Protection Agency's ambitious assertion of jurisdiction over the waters of the United States.

The EPA has long used the Clean Water Act as a federal zoning tool and implicitly asserted jurisdiction over virtually everything that is wet, ever has been wet or ever will be wet.

In Alaska, because permafrost comes within the agency's definition of something wet, tens and tens of millions of acres within the state have been regarded as wetlands and, therefore, waters of the United States that EPA feels justified in attempting to regulate.

The definition of what constitutes waters of the United States has been controversial since the early 1970s and the EPA has been persistent in pushing the envelope at every opportunity, taking the question twice to the Supreme Court of the United States, without having the matter meaningfully resolved.

Most recently, the EPA promulgated an extremely aggressive definition of what comprised the waters of the United States; however, because the EPA took the position that its definition did not constitute a change in the law, it argued that it was not subject to the numerous fail-safes that Congress had enacted to ensure that the Agency's interpretation of its jurisdiction did not sublimate the mandates of other agencies of government.

States that produce the commodities upon which we all rely are frequently sparsely populated and depend on vast tracts of land, often public land, to produce the corn and cattle and timber and copper that our society demands. The economies of those states generally are dependent upon the availability of water and access to land that is sometimes wet. Although the EPA commonly gives passing weight to the economic impact of its regulations, the focus of its regulatory efforts is invariably to control and restrict rather than foster and encourage resource development and commodity production.

Alaskans have long suffered from this singular bias; however, we are not alone.

In the land between the Appalachians and the Rockies, farmers and cattlemen have borne the unrelenting brunt of the EPA's insensitivity, and now, through their congressional delegations, Democrats and Republicans alike, they are fighting back.

On May 12, the U.S. House of Representatives passed H.R. 1732 by a vote of 261-155, with the support of 24 Democrats.

The U.S. Senate is also considering bipartisan legislation to require the Secretary of the Army and the Administrator of the EPA to propose a regulation revising the definition of the waters of the United States and this time to comply with the Administrative Procedures Act, the Regulatory Flexibility Act, the Small Business Regulatory Enforcement Fairness Act, the Unfunded Mandates Act, and Executive Orders 12866, 13563 and 13132; all things the EPA decided that it did not have to do when it proposed its rule last year.

The legislation consistently is an effort to leverage the EPA into a mode wherein it is regulating pollution of traditional waterways and not underground hydrology or isolated water bodies. It is legislation that bodes well for resource developers throughout the nation and especially in Alaska and bears watching.

Assuming that the legislative process is now working again, and that the House and Senate will agree on a bill that has strong bipartisan support, all that remains is for the President to sign it into law. The current proposals are reasonable on their face, are consistent with the best interests of the national economy and should be met with the President's approval.

For the first time in more than six years, the light of hope is appearing on the distant horizon. Let this be the first of many measures that meet the needs of the nation.

 

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