Editorial: There’s more than one way to fight the EPA water grab

Earlier this summer, the Environmental Protection Agency issued its final rule to “clarify” what water is covered by the Clean Water Act of 1972, which originally was intended to limit pollution of navigable waterways. The clarification puts nearly every stream, ditch, wetland or muddy hoof print under EPA control.

Nevada is now fighting this brazen water grab on two fronts.

First, members of Congress introduced legislation to block the usurpation of state water rights. Reps. Mark Amdoei, Cresent Hardy and Joe Heck voted with a majority of the House (261-155) on a bill to block this EPA water rule (H.R. 1732). Rep. Dina Titus, of course, voted against it.

Now, Nevada Attorney General Adam Laxalt has joined the fray. Nevada and a dozen other states are suing in federal court over the so-called “Waters of the United States” rule.

“I will fight for Nevada each time President Obama attempts to unilaterally ‘transform’ this country through expansive and unconstitutional new interpretations of decades-old laws. My office has pledged a commitment to protecting our state from unreasonable federal overreach and will continue to do so at every opportunity,” said a Laxalt press release.

Coming on the heels of the Supreme Court ruling reining in the EPA’s overreach on emissions from coal-fire power plants, it seems the lawsuit has promise.

The court stopped the EPA from imposing strict limits on power plant emissions, mostly from coal-fired plants, because it failed to take into account the fact the cost would hugely exceed any potential benefits.

“This is the latest power grab by this presidential administration to expand federal oversight into areas that are better managed by state and local governments,” said Laxalt. “Congress directed that the states retain their sovereign authority over state land and water resources. The ‘Waters of the United States’ rule would grant the EPA authority over areas properly regulated by state and local governments. This expansive new rule is particularly problematic for states like Nevada, whose specific needs cannot be understood by federal agencies such as the EPA, with its one-size-fits-all approach to regulation.”

The new EPA rule would allow the federal government to require a permit and demand a fee for any work that alters the flow of water near any rivulet — anything from dredging an irrigation ditch to terracing a field — on public or private land.

At the time of the rule’s publication President Obama declared, “Too many of our waters have been left vulnerable to pollution,” which to the EPA includes dirt. “This rule will provide the clarity and certainty businesses and industry need …” he said, claiming the rule has been written to avoid harming farming, ranching and forestry — a base canard.

But the Western Congressional Caucus said the EPA spurned public comment and input from the states in the rule making process, saying of the new rule, “This is nothing short of a federal seizure of state waters, to the point where very few, if any, water bodies will be left for the states to manage. Water rights, economic growth, and local conservation efforts will suffer. Instead of working with the local officials and state agencies who know their needs the best, citizens will have to depend on a disconnected federal bureaucracy for management of our most precious natural resource: our water.”

Time to argue for states’ rights under the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

If our lawmakers can’t stop this water grab, we hope our lawyers can.

A version of this editorial appears this past week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

28 comments on “Editorial: There’s more than one way to fight the EPA water grab

  1. nyp says:

    Here is what the EPA says about Mr. Mitchell’s allegation that the new rules put nearly every ditch or muddy hoofprint under EPA control:

    “The proposed rule will NOT bring all ditches on farms under federal jurisdiction.
     Some ditches have been regulated under the Clean Water Act since the 1970s.
     The proposed rule does not expand jurisdiction.
     For the first time, the agencies are clarifying that all ditches that are constructed in dry lands, that drain
    only dry lands, and don’t have perennial flow, are not “waters of the U.S.” This includes many roadside
    ditches and many ditches collecting runoff or drainage from crop fields.

    “o Ditches that are IN are generally those that are essentially human-altered streams, which feed the
    health and quality of larger downstream waters. The agencies have always regulated these types
    of ditches.
    o Ditches that are OUT are those that are dug in dry lands and don’t flow all the time, or don’t flow
    into a jurisdictional water.
     Farmers, ranchers and foresters continue to receive exemptions from Clean Water Act Section 404 permitting requirements when they construct and maintain irrigation ditches and maintain drainage
    ditches, even if ditches are jurisdictional.”

  2. Steve says:

    Hoof prints…. still included!

  3. nyp says:

    And here is what the EPA has to say about Mr. Mitchell’s contention that it
    is going to “demand a fee for anything from dredging an irrigation ditch to terracing a field — on public or private land.”:

    ” The rule
    does not create any new permitting requirements for agriculture and
    maintains all previous exemptions and exclusions.It does not regulate
    most ditches and does not regulate groundwater, shallow subsurface
    flows, or tile drains. It does not make changes to current policies on
    irrigation or water transfers or apply to erosion in a field. The Clean
    Water Rule protects waters from pollution and destruction – it does
    not regulate land use or affect private property rights.”

  4. Here is what Laxalt says in op-ed:

    “Reading the rule, it is hard to tell what would not qualify as a federally regulated “water of the United States.” Rain-filled ditches and some irrigation channels may now be covered, as well as seasonal streams connected to navigable waters only once a century. If that wasn’t enough, the agencies created a new category for “other waters,” allowing them to exert jurisdiction on a case-by-case basis.

    “The only waters that will clearly escape federal embrace are those included in the rule’s short list of exemptions. “Puddles” made the cut. But the fact that puddles even needed an exemption demonstrates how broad the federal definitions are. …

    “The latest federal waters rule is the product of a historical tension between federal agencies and the Supreme Court. The exact legal meaning of “waters of the United States” has never been crystal clear. Taking advantage of the ambiguity, federal agencies have tried to push the term to its limits. Twice in the past 15 years, that has landed them on the losing side of Supreme Court cases. This is their latest attempt to circumvent those rulings.”


  5. EPA and Obama lie.

  6. nyp says:

    Nope, no hoof prints – unless the horse is so large that the water drains down into a navigable waterway.
    Here is what the Rule actually says about “ditches”:

    Rule Text § 230.3(s)(2)(iii): “The following are not ‘waters of the United States… the following
    ditches: (A) Ditches with ephemeral flow that are not a relocated tributary or excavated in a
    tributary. (B) Ditches with intermittent flow that are not a relocated tributary, excavated in a tributary,
    or drain wetlands. (C) Ditches that do not flow, either directly or through another water, into [a
    traditional navigable water, interstate water, or the territorial seas.”

  7. nyp says:

    Mr. Mitchell, all you have to do is cite the portion of the Rule that allows the EPA to regulate ditches and muddy hoofprints. The Rule is publically available. All you have to do is engage in some journalism and give your readers the passages in the rule that show how the EPA is regulating all ditches and muddy hoofprints. Go right ahead.

    Or, could it possibly be that you have spent so much time in the far-right bubble that you have become completely unhinged and resistent to facts?

  8. nyp says:

    Rule Text § 230.3(s)(2)(iv)(F): “The following are not ‘waters of the United States’ . . . erosional features,
    including gullies, rills, and other ephemeral features that do not meet the definition of tributary . . . .”

  9. nyp says:

    Rule Text § 230.3(s)(2)(v): “The following are not ‘waters of the United States… groundwater, including
    groundwater drained through subsurface drainage systems.”

  10. nyp says:

    Rule Text § 230.3(s)(2)(iv)(B): “The following are not ‘waters of the United States… Artificial, constructed
    lakes and ponds created in dry land such as farm and stock watering ponds . . . .”

  11. nyp says:

    Rule text § 230.3(s)(2)(iv)(A): “The following are not ‘waters of the United States… artificially irrigated
    areas that would revert to dry land should application of water to that area cease . . . .”
    Rule text § 230.3(s)(2)(iv)(B): “The following are not ‘waters of the United States . . . Artificial
    constructed lakes and ponds created in dry land such as . . . irrigation ponds . . . .”

  12. nyp says:

    Rule text § 230.3(s)(2)(vi): “The following are not ‘waters of the United States… stormwater control
    features constructed to convey, treat, or store stormwater that are created in dry land.”

  13. Mattie Ross: That tastes like iron.
    LaBoeuf: You’re lucky to be where water’s so handy. I’ve seen the time I’ve drank out of a filthy hoofprint – and was glad to get it.
    Rooster Cogburn: If ever I meet one of you Texas waddies who ain’t drunk water from a hoofprint, I think I’ll… I’ll shake their hand or buy ’em a Daniel Webster cigar.

  14. Vernon Clayson says:

    as usual, nyp ignores the major point his in love for the federal government, especially when it comes to states rights. The feds shouldn’t just take overal control without first considering what the state laws, rules and regulations stipulate. If they believe their idea is better they can state their case and perhaps reach a compromise. If not, they should butt out.

  15. noodle35 says:

    Laxalt is one of the few that really gets it.


    Jim Gregory

    * jim@weststates.org

  16. Patrick says:

    Wonder if a man made lagoon, or pond, is subject to the “navigable water” definition? But, shoot, we’ll let the state decide cause….well, the 10th Amendment and all.

    “Mining companies often wash their coal to remove impurities. The leftover liquid — a black fluid containing dissolved minerals and chemicals, known as sludge or slurry — is often disposed of in vast lagoons or through injection into abandoned mines. The liquid in those lagoons and shafts can flow through cracks in the earth into water supplies. Companies must regularly send samples of the injected liquid to labs, which provide reports that are forwarded to state regulators.”

    “These underground injections have contained chemicals at concentrations that pose serious health risks, and thousands of injections have violated state regulations and the Safe Drinking Water Act, according to reports sent to the state by companies themselves.

    For instance, three coal companies — Loadout, Remington Coal and Pine Ridge, a subsidiary of Peabody Energy, one of the largest coal companies in the world — reported to state officials that 93 percent of the waste they injected near this community had illegal concentrations of chemicals including arsenic, lead, chromium, beryllium or nickel.”

    Sometimes those concentrations exceeded legal limits by as much as 1,000 percent. Those chemicals have been shown to contribute to cancer, organ failures and other diseases.

    But those companies were never fined or punished for those illegal injections, according to state records. They were never even warned that their activities had been noticed.”


  17. Patrick says:

    I wonder if a creek falls under the definition of “navigable water”?

    But shoot, I’m sure the state will take good care of their citizens rght?

    “This is a repost of a diary I wrote in 2010. Today marks the fortieth anniversary of the Buffalo Creek, West Virginia dam collapse that killed 125 people, many children, on a rainy Saturday morning in 1972. The story begins inside..”

    “Buffalo Creek consists of 3 branches. As part of its strip mining operations, the Buffalo Mining Company, a subsidiary of the Pittston Coal Company, began dumping gob — mine waste consisting of mine dust, shale, clay, low-quality coal, and other impurities — into the Middle Fork branch as early as 1957. Buffalo Mining constructed its first gob dam, or impoundment, near the mouth of Middle Fork in 1960. Six years later, it added a second dam, 600 feet upstream. By 1968, the company was dumping more gob another 600 feet upstream. By 1972, this third dam ranged from 45 to 60 feet in height. The dams and coal mine waste had turned Middle Fork into a series of black pools.
    West Virginia Division of Culture and History: Buffalo Creek”

    “In a matter of minutes, the deadly avalanche of coal slurry left 125 dead, including three infants who were never identified and seven missing bodies never recovered, six of them two years old and younger. Over a thousand were injured. The homes of four thousand people — four-fifths of the hollow’s population — were destroyed.”

    “But those companies were never fined or punished for those illegal injections, according to state records. They were never even warned that their activities had been noticed.”


  18. Patrick says:

    A slurry pond (man made) a “navitagable water”? Hrumph. The state will surely ensure the safety of its citizens (and all those good people who love beyond it’s borders that will be affected right?

    “On Oct. 11, 2000, a coal sludge pond in Martin County, Ky. broke into an underground mine, releasing millions of gallons waste into Coldwater Fork and Wolf Creek.
    AP reports that although cleanup efforts began days before, it had “no measurable impact” on the sludge-covered area and thick streams were headed toward the Big Sandy River, one of the area’s largest water sources. At this stage, 200 million gallons are said to have spilled over the region. A woman trapped in her home due to the disaster was interviewed, saying she had no way to travel to town. No injuries or deaths were reported, but wildlife deaths were assumed.
    On Oct. 16, a Louisa, Ky. water plant was shut down due to the toxicity of its water source. Officials from the plant had previously been promised that the sludge wouldn’t reach their water, but as the water turned black, Martin County Coal Company organized to provide the surrounding area with water transported from Lowmansville, Ky.”

    “By Oct. 24, estimates of the spill had increased to 250 million gallons, polluting drinking water for at least 60 miles. A representative of the company told the press that officials would work “24 hours a day seven days a week” until matters were handled.”

  19. Patrick says:

    Is it even possible that the cyinide laced water, leeching out of the gold heap, couple be considered a “navitagable water” such that that needs to be regulated? I mean, no chance that a state would allow that to happen, no onl to its own citizens, but to the “down drinkers/users” right?

    People have been mining gold in the mountains above the valley for more than century, but it was not until the late 1980’s that a new method was used. At Summitville, the method involved crushing millions of tons of rocks and heaping them into giant piles, then soaking them with a cyanide solution that leached the gold from the rocks. The mine was operated for about five years, until 1992, by Summitville, whose major shareholders were in Canada. At the time, the mine was leaching gold with cyanide, Colorado was in a deep recession and its Legislature cut back on enforcement and regulation of mining operations.

    The mine was supposed to be supervised by the state, but from the very beginning, according to court documents, the plastic linings of containment ponds that held the stew of toxic waste were not properly installed — and the state never caught the problem. The linings were breached, sending poisons into the river. At the same time the mine became a money pit of financial losses.

    In late 1992, just as the toxic waste water was filled to the brim and threatening a heavy spill into the valley, Summitville declared bankruptcy and shut down operations, and its officers fled. It was left to the Environmental Protection Agency, using company workers familiar with the operation, to keep the toxins at bay. It is a continuing operation that federal officials say could go on for two more decades.

    ”The river was killed for 17 miles, but it would have been a heck of a lot worse if the feds had not stepped in,” said Roger Flynn, who served on the governor’s Summitville task force and is the director of Western Mining Action Project, an environmental group in Denver.”


  20. Heritage: “In Rapanos v. United States, Justice Antonin Scalia cited a study highlighting the following costs and delays for one of the major types of permits (Section 404 dredge and fill permits): ‘The average applicant for an individual permit spends 788 days and $271,596 in completing the process, and the average applicant for a nationwide permit spends 313 days and $28,915 — not counting costs of mitigation or design changes.’”


  21. Would the EPA bureaucracy have prevented any of those?

  22. Patrick says:

    Luckily, we live in a free and beautiful state drenched in the pure love our state enterprises drip on us at every opportunity, and if, sheerly by accident, one of those foreign owned mining companies were to send mercury, and arsenic, and lead, and cyanide into our water and air, our public servants would make sure we the people are taken care of right?

    ” Newmont, one of the world’s largest gold mining companies, has operations on five continents. All of its North American operations are in Nevada, where the company controls 2.8 million acres.
    Newmont operates the Gold Quarry Facility, about 6 miles north of Carlin in Eureka County. There, it dumps illegal levels of lead and mercury into its 800-acre tailings impoundment, according to the U.S. Environmental Protection Agency.
    Barrick violates the Solid Waste Disposal Act and Nevada’s Disposal of Hazardous Waste laws by dumping more than 0.2 milligrams per liter of mercury into its tailings impoundment, according to the complaint.
    Mercury is used to separate gold from other minerals. The leaching process creates a bleed stream containing at least 0.2 milligrams per liter of mercury at Newmont, and at least 5 milligrams per liter of lead, according to the EPA.
    The EPA says the mines did not have permits to store the hazardous wastes or dispose of them. The mines did not determine whether the mercury bleed streams are hazardous, and treated and disposed of hazardous waste without permits, according to the complaint.”

    Although the companies faced potentially hundreds of millions of dollars in fines,

    ” On March 6, four days after this article appeared in Courthouse News, EPA spokeswoman Margot Perez-Sullivan said that consent decrees show that EPA settled with Barrick for $196,000 and with Newmont for $395,000.
    (Perez said that according to the consent decrees, both companies dumped hazardous wastes “for a certain period of time,” and have “ceased the practice.” She added that mercury occurs naturally in ore mined in the Carlin Trend.”

    I feel much better now.

  23. Patrick says:

    Thomas do laws prevent crimes? Do taxes result in less of something?

    And, even if lawbreakers, and moral reprobates like those who would poison the water for millions, continue to do the same in spite of a law saying otherwise, should we just get rid of law?

    I mean, come on man.

  24. Steve says:

    Happily, Mitch does not have to show anything. This is not a court of, this a place for expressing opinion.

    The place where the decision will be made is in a court of law. This discussion is more about whether Laxalt should have joined the other states in their lawsuit (yes, he did the right thing) or whether he should not have joined Nevada with the other states.
    This lawsuit will make a decision that, hopefully, clarifies who controls water in the individual states and what waters are interstate and subject to federal rule.

    Mitch does not have to show Nyp anything. Nyp has nothing but the claims made by EPA which are under question in the lawsuit.

    We get to wait for the outcomes of the various courts. (because this will not be resolved in lower courts, it will go to SCOTUS because EPA has unlimited resources to force it that high)

  25. nyp says:

    You have an interesting approach to the concept of factuality.

  26. Steve says:

    We elect these people to do those jobs, Nyp.

    Once the courts make their ruling then you have something to argue…until then, you have a court case which is not in your control.
    After they make their decision you can lobby your representatives to makes laws to change the ruling…as you have so often reminded people on this blog on many occasions yourself.

  27. Winston Smith says:

    I moved into a new neighborhood a few months back. Two months ago, I had some problems with one of my neighbors causing damage on my property, so I called the cops. They came and arrested the jerk, but for good measure, they later arrested all of my other neighbors too, just to make sure none of them would do anything similar to me in the future.

    Boy, am I glad, I feel so safe now…

  28. Patrick says:

    Since when does a bastard child take his mothers husbands name?

    And I wonder, how much money the bastard took, from the foreign mining companies that stand most to gain by his lawsuit, AFTER he won his election?

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