Senator Doug Whitsett's Newsletter

The Environmental Protection Agency (EPA) has recently renewed its ongoing crusade to control all of the nation’s land by controlling all of its water. The Agency is attempting to make its jurisdiction limitless under the authority it alleges is vested by the Clean Water Act. Its new proposed rule would usurp near complete regulatory control of water from the states on both publicly and privately owned lands.

The Agency has developed a new report titled “Connectivity of Streams and Wetlands to Downstream Waters”.  The report is described as a review and synthesis of peer reviewed scientific literature. The document appears to be little more than a synopsis of “cherry picked” passages from the executive summaries of previously published papers. Little if any new scientific data or research is cited.

The report is designed to support limitless EPA jurisdiction over the waters of the nation. The Agency alleges that the draft science report represents the state-of-the-art science on the connectivity and isolation of the waters of the United States. It plans to use the report to inform rulemaking agencies on how best to enhance the protection of the chemical, physical and biological integrity of our nation’s waters.

The EPA report draws three main conclusions.

First, it alleges that streams, regardless of their size or how frequently they flow, are connected to and have important effects on downstream waters. These streams supply most of the water in the rivers, transport sediment and organic matter, provide habitat for many species, and take up or change nutrients that could otherwise impair downstream waters. The claim here is that EPA should have regulatory authority under the Clean Water Act over all streams, whether the stream is ephemeral, intermittent or perennial because the water in those streams eventually may flow into navigable water.

Second, it alleges wetlands and the open-water floodplains of streams and rivers, and in riparian areas are integrated with streams and rivers. It claims they represent transitional areas between terrestrial and aquatic ecosystems and strongly influence downstream waters by affecting the flow of water, trapping and reducing non-point source pollution, and exchanging biological species. The claim here appears to be that virtually any seasonal wet spot in a watershed that is capable of intercepting sediment or other materials carried in the water should be regulated by EPA because it could potentially effect the composition of downstream navigable water.

Finally, it alleges that there is insufficient information to generalize about wetlands and open-waters located outside of riparian areas and floodplains and to their connectivity to downstream waters. The assertion here is that the agency has not yet sufficiently manipulated the data to claim jurisdiction to regulate isolated waters under the authority of the Clean Water Act.

The United States Army Corp of Engineers has already sent a draft rule to clarify the jurisdiction of the Clean Water Act to the Office of Management and Budget for interagency review. The Corp took this action based upon the draft review and synthesis of selected literature before the mandatory public comment period on the draft report was even completed. This untimely action appears to emphasize  the distain that the current administration holds for public opinion as well as for legal administrative process. 

The EPA and Corp claim that they are acting in concert to “clarify the current uncertainty” concerning the jurisdiction of the Clean Water Act that they allege has arisen out of recent U.S. Supreme Court decisions. However, recent high court decisions in Rapanos, Carrabell, and Sackett each appear to establish limitations on the agencies’ regulatory authority. The decisions appear to limit the same jurisdiction that EPA and the Corp are attempting to establish by rule.

Our Constitution and form of limited Republican government are designed to require the consent of those who are governed. In my opinion, this EPA proposal is but one more example of the Obama administration’s near complete distain for the rights reserved to the states under the United States Constitution as well as for the rule of law. Further, his agencies are showing their total contempt for public participation in the creation of the laws and rules under which we consent to live.

The members of the four-state Committee on River Governance who voted unanimously oppose this blatant attempt to expand EPA Clean Water Act jurisdiction. We all signed a letter to EPA requesting an extension of the public comment period so that citizens will at least have an opportunity to be heard on this critical matter.

Perhaps the Obama administration believes that it can slip through this take-over of all the water, and thereby all the land, while the nation is distracted by his unprecedented Obama Care fiasco. This great nation is taking on more of the persona of a Banana Republic with each passing week under his administration.  

Please remember, if we do not stand up for rural Oregon no one will.

Best Regards,

Doug