Editorial: WOTUS rule change restores federalism

The usual suspects in the self-styled environmental groups predictably collapsed into palpitating conniptions this past week when the Trump administration announced its final rule rolling back the Obama-era rule that overreachingly defined the waters of the United States (WOTUS) covered by the Clean Water Act of 1972 as every stream, ditch, wetland or muddy hoof print that might ever eventually spill a few drops of water into any rivulet.

Brett Hartl, government affairs director at the Center for Biological Diversity, wailed, “This sickening gift to polluters will allow wetlands, streams and rivers across a vast stretch of America to be obliterated with pollution. People and wildlife need clean water to thrive. Destroying half of our nation’s streams and wetlands will be one of Trump’s ugliest legacies. We’ll absolutely be fighting it in court.”

Massachusetts Sen. Elizabeth Warren, a Democratic candidate for president, fired off a Twitter rant, “Government works great for giant corporations that want to dump chemicals & toxic waste into streams & wetlands. It’s just not working for families that want to be able to drink water without being poisoned. This is corruption, plain and simple.”

But Environmental Protection Agency Administrator Andrew Wheeler, while announcing the rule change at a conference of the National Association of Home Builders in Las Vegas, pointed out, “All states have their own protections for waters within their borders, and many regulate more broadly than the federal government. … Our new rule recognizes this relationship and strikes the proper balance between Washington, D.C., and the states. And it clearly details which waters are subject to federal control under the Clean Water Act and, importantly, which waters falls solely under the states’ jurisdiction.”

The new rule — prepared by the EPA and the Army Corps of Engineers — is to take effect in 60 days, though litigation challenging it is a certainty.

The Obama administration’s 2015 definition of WOTUS covered about half of the nation’s wetlands and many streams that flowed only after heavy rainfall and required farmers and developers to seek expensive and time-consuming permits before turning so much as a shovel of dirt.

The Clean Water Act made it unlawful to discharge any pollutant that could eventually reach navigable waters unless a permit was first obtained. The 2015 WOTUS definition, for example, barred a Minnesota company from mining peat on a wetland 120 miles from the Red River.

Nevada and a dozen other states in 2015 obtained an injunction from a federal judge blocking enforcement of the sweeping WOTUS rule. Then-Nevada Attorney General Adam Laxalt said of the injunction, “This important order, at a minimum, delays implementation of an unwise, unjustifiable and burdensome rule, and protects Nevada’s landowners, farmers and developers from job losses and increased energy prices, until the final rule can be comprehensively fought in court.” The EPA decided the injunction applied only to those 13 states.

The rule change has been in the works since shortly after President Trump took office.

In a speech to the American Farm Bureau two weeks ago Trump talked about the rule change, saying, “And, today, I’m proud to announce that I am taking yet another step to protect the water rights of American farmers and ranchers. Under the previous administration, the Army Corps of Engineers proposed a new Water Supply rule that would give the federal government vast and unlimited power to restrict farmers’ access to water. That’s not a good thing. Is anybody happy with being restricted to water if you have a farm? Please stand up if you are happy about that. Because this authority rightfully belongs to the states, not the bureaucrats in Washington, D.C.”

The nation’s waters are not being turned over to corporations for dumping chemicals and toxins. The power to regulate and protect the water is simply being returned to the states, which under the principles of federalism, is where they rightfully belong.

In fact, Trump’s executive order of February 2017 that started the rule change process is titled: “Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.”

A version of this editorial appeared this 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.

Newspaper column: EPA Repeals Obama-Era Land Use Restrictions

Trump’s EPA rolls back Obama-era Clean Water Act rules. (AP pix via WSJ)

The Trump administration’s Environmental Protection Agency has finalized the repeal of yet another Obama-era regulatory overreach, specifically rules that defined every stream, ditch, seasonal puddle and muddy hoof print as being covered by the restrictions of the Clean Water Act of 1972 that was intended to prohibit pollutants being dumped into navigable waters — known as the waters of the United States or WOTUS.

First announced in December but finalized this past week, EPA Administrator Andrew Wheeler said, “Our revised and more precise definition will mean that farmers, property owners and businesses will spend less time and money determining whether they need a federal permit.”

When the change was first proposed, Wheeler said, “Property owners will be able to stand on their property and determine what is federal water without having to hire outside professionals.”

National Cattlemen’s Beef Association President Jennifer Houston issued a statement applauding the change.

“The 2015 WOTUS Rule was an illegal effort by the federal government to assert control over both land and water, significantly impacting our ability to implement vital conservation practices,” Houston said. “After years spent fighting the 2015 WOTUS Rule in the halls of Congress, in the Courts, and at the EPA, cattle producers will sleep a little easier tonight knowing that the nightmare is over.”

American Farm Bureau Federation President Zippy Duvall released a statement saying, “No regulation is perfect, and no rule can accommodate every concern, but the 2015 rule was especially egregious. We are relieved to put it behind us. We are now working to ensure a fair and reasonable substitute that protects our water and our ability to work and care for the land. Farm Bureau’s multi-year effort to raise awareness of overreaching provisions was powered by thousands of our members who joined with an array of allies to achieve this victory for clear rules to ensure clean water.”

The National Association of Home Builders and the National Association of Manufacturers also praised the repeal of the WOTUS overreach, according to The Wall Street Journal, which noted that roughly 25 percent of every dollar spent on a new home in this country is due to regulatory-compliance costs.

The change brings the EPA more in line with what the U.S. Supreme Court has said is appropriate. In 2010 the Hawkes Co., which mines peat for use on golf courses among other things, applied for a permit to mine peat on a 530-acre tract of property it owns in Minnesota. The Army Corps of Engineers told the company they would have to do numerous tests that would cost more than $100,000. The Corps said the wetlands had a “significant nexus” to the Red River of the North, located some 120 miles away. Failure to comply carried a threat of fines amounting to $37,000 a day and criminal prosecution.

In a concurring opinion in that case, Supreme Court Justices Anthony Kennedy, Clarence Thomas and Samuel Alito, said that the EPA and Corps “ominous reach” on interpreting the Clean Water Act “continues to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation.”

Chief Justice John Roberts during arguments noted the arduousness of compliance. He said a specialized individual permit, such as the one sought by Hawkes, on average costs $271,596 and 788 days to complete, not counting any mitigation costs that might be required. He said the permitting process can be “arduous, expensive, and long.” He failed to mention that is also often futile.

Then-Nevada Attorney General Adam Laxalt, who along with 22 other attorneys general filed an amicus brief in this case, applauded the judgment at that time, saying, “The Obama administration seems determined to move as far and as fast as possible to unilaterally change our constitutional system and our congressional laws. … Fortunately in this case, our checks and balances have protected Nevadans from truly unprecedented federal overreach.”

Nevada’s current Democratic Attorney General is being quoted by the press as saying, “At this time, Nevada believes it would be in its best interest to remain under the pre-2015 WOTUS rule,” and the Nevada Department of Environmental Protection is said to agree.

Though this change in the rules used by the EPA is welcome, some future administration could easily overturn them. Congress needs to act to clarify the Clean Water Act. Previously, the House and Senate passed resolutions that would have blocked the EPA water rules, but in January 2016 the Senate failed to override Obama’s veto.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

 

Editorial: Head of EPA bemoans ‘weaponization’ of his agency

EPA head Scott Pruitt tours a Nevada mine. (Elko Daily Free Press pix)

Under the Constitution the duty of the executive branch of the federal government is to enforce the laws enacted by Congress. Somewhere along the way some presidents and many of their appointed administrators of the various executive branches have lost sight of this distinction and usurped powers not accorded them.

Fortunately this trend appears to be on the decline. Take for example the recent words of Environmental Protection Agency Administrator Scott Pruitt.

“We are housed in the Executive Branch, and your job is to enforce the law — the only authority I have is from Congress — largely what has happened with the past administration, they made it up,” Pruitt said in a recent press interview. “The fact that Congress is dysfunctional and is not updating the Clean Air Act or the Clean Water Act or all of these statutes that we administer, the fact that Congress isn’t doing that doesn’t mean EPA can say, ‘We’re going to do it in your place.’”

He went on to say his agency in the past had “weaponized” its rule making authority to pick and choose winners in the economy. “Weaponized in the sense of saying we are going to favor certain outcomes in the market with respect to energy and the environment — that’s not the role of a regulator,” Pruitt said.

A few days later the head of the EPA visited mining sites in Nevada and continued his rant about the weaponization of rules to prohibit economic activity rather than meet the congressional mandate to keep the air and water clean.

“The agency that I’ve been selected to lead, the last several years has been weaponized. It’s been weaponized against certain sectors of our economy, and yours was one of them,” the Elko newspaper quoted Pruitt as telling 300 miners during a visit to Coeur Mining’s Rochester mine near Lovelock. “Think about that for a second. An agency in Washington, D.C., weaponized against its own sectors of the economy across this country. That’s not the way it should work.”

He said his agency needs to get back to stewardship of the environment rather than issuing prohibitions against certain activity.

Pruitt went on say that his agency would be cooperative with the states in taking commonsense approaches that give the state leeway in making cost-effective decisions — a refreshing return to the concept of federalism.

“We recognized that you in Nevada recognize that you care about the air that you breath, the water you drink and how you take care of your land in the state,” the Elko paper quoted Pruitt as saying. “Having a rule that was punitive, weaponized against the mining sector, was not a reason to have the rule, so we stopped the rule.”

Pruitt’s approach to looking at the facts and the law instead of vague presumptions based on unproven theories is sending the climate change acolytes into paroxysms of apoplexy.

In that earlier interview, he was quoted as saying, “There are things we know and things we don’t know. I think it’s pretty arrogant for people in 2018 to say, ‘We know what the ideal surface temperature should be in the year 2100,’” adding that the debate about proper carbon dioxide levels is important but not the most pressing matter in the near future.

We appreciate and applaud the commonsense and constitutional approach enunciated by this member of the executive branch. It is good for the economy, the environment and the country.

A version of this editorial appeared this 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.

Editorial: Good riddance to Clean Power Plan

President Trump’s Environmental Protection Agency has pulled the plug on the Obama-era Clean Power Plan, which called for power plants in every state to reduced carbon dioxide emissions by 32 percent below 2005 levels by 2030 — a not so thinly veiled plan to destroy the coal industry.

It was a senseless and futile gesture that would have cost Americans dearly while doing nearly nothing to protect the planet from global warming.

The U.S. Supreme Court had already blocked enforcement of the plan after 29 states filed suit saying the plan violated the law and the concept of federalism. Nevada filed an amicus brief with the court agreeing with those claims.

According to a Heritage Foundation report, Obama’s plan by 2030 would have cost an annual average employment shortfall of nearly 300,000 jobs with a peak employment shortfall of more than 1 million jobs. It also would have created a loss of more than $2.5 trillion (inflation-adjusted) in aggregate gross domestic product (GDP) and reduced total income per capita by more than $7,000 (inflation-adjusted).

According to the American Coalition for Clean Coal Electricity, the EPA proposal would increase the price of electricity in Nevada an average of 18 percent between 2020 and 2029.

Nevada’s friend-of-the-court brief noted, “EPA’s expensive economic experiment, imposed by fiat, will increase electricity prices for consumers and may well compromise the reliability of electric power service. The best estimates of how much prices will rise, performed by the NERA (National Economic Research Associates) economic consulting group, projects increases of as much as 14 percent per year costing Americans as much as $79 billion in present dollars.”

Although Obama’s EPA administrator Gina McCarthy insisted those costs were well worth it in order to save the planet, Obama’s own former Assistant Secretary of Energy Charles McConnell said at a congressional hearing in 2016, “The Clean Power Plan has been falsely sold as impactful environmental regulation when it is really an attempt by our primary federal environmental regulator to take over state and federal regulation of energy.”

McConnell told the House Committee on Science, Space and Technology that he estimated the plan would only reduce global carbon dioxide emissions by 0.2 percent, and the rule would only reduce projected warming by 1/100th a degree Celsius and reduce projected sea level rise by 1/100 of an inch.

“We can now assess whether further regulatory action is warranted, and, if so, what is the most appropriate path forward, consistent with the Clean Air Act and principles of cooperative federalism,” said EPA administrator Scott Pruitt in announcing the rescinding of the Clean Power Plan. The previous rule, he added, “ignored states’ concerns and eroded long-standing and important partnerships that are a necessary part of achieving positive environmental outcomes.”

The change will not affect Nevada as much as other states since the state’s lawmakers, at the behest of former Sen. Harry Reid, have already dictated that all coal-fired plants in the state be shuttered prematurely and the ratepayers pick up the tab. The move is expected to destroy 2,630 jobs by 2020 and cut real disposable income by $226 million per year, according to one study.

The EPA rule change should be a boon to the national economy for years to come, and is a welcome breath of regulatory fresh air, so the speak.

A version of this editorial appeared this 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.

Pruitt ends another costly Obama era EPA practice

It’s about damned time.

EPA administration Scott Pruitt said today his agency is ending the practice that has come to be known as “sue and settle” — in which self-styled environmental sue the government over some feigned failure to protect something or stop some viable economic activity and the government caves without putting up a fight.

“We will no longer go behind closed doors and use consent decrees and settlement agreements to resolve lawsuits filed against the Agency by special interest groups where doing so would circumvent the regulatory process set forth by Congress,” Pruitt said in a statement.

Scott Pruitt, head of EPA

As the attorney general of Oklahoma, Pruitt was involved in many such lawsuits.

Pruitt said that when a settlement is being considered the EPA will discuss the matter with affected states and communities.

 

Back in 2014 we lamented the “sue and settle” practices of the Obama administration.

The previous fall, the the U.S. Fish and Wildlife Service designated as threatened — under the terms of the Endangered Species Act — the bi-state greater sage grouse found along the northern California-Nevada border, supposedly a distinct population segment of about 5,000 remaining birds, even though the birds are legally hunted in both states.

That decision followed an October 2010 lawsuit filed by the Western Watersheds Project challenging grazing permits granted by the Bureau of Land Management.

In the spring of 2014 the FWS designated as threatened the lesser prairie chicken, which are found in Texas, Oklahoma, Colorado and New Mexico and Kansas.

Wild Earth Guardians sued the FWS in 2010 demanding rapid action on the listing status of 251 species. FWS caved.

A Mono Basin bi-state sage grouse

Under the settlement, FWS was also to decide whether to list the greater sage grouse, which are found in 11 Western states, by September 2015. What do you think the odds are? Fortunately, that never happened, though the Obama administration issued a massive and draconian set of land use plans meant to protect the chicken-sized birds. Recently, Pruitt’s EPA rescinded those plans

Many of the causes of Western species decline have nothing to due with farming, ranching, oil and gas exploration or recreation, but with incompetent land management by the federal agencies, which have ignored fuel management practices and allowed vast wildfires to ravage the ranges. Additionally, there a lack of predator control, one of the biggest problems for most of the species in question, but a factor ignored by the feds.

 

During the four decades of the Endangered Species Act less than 2 percent of listed species have been delisted. Once on the list they are on the list forever.

Pruitt appears to be correcting many of the errors of his predecessor.

 

 

Editorial: Return authority over intrastate water to the states

The Environmental Protection Agency announced this past week that it is moving to rescind the Obama administration’s 2015 rules that defined the “waters of the United States” (WOTUS) under the Clean Water Act of 1972 as every stream, ditch, wetland or mud puddle that might eventually after a deluge spill a few drops into any rivulet that might occasionally be navigable with an inner tube.

As the courts have noted, the Clean Water Act was intended to give the EPA and the Army Corps of Engineers and other federal agencies authority over “navigable waters” only.

President Trump signed an order in February instructing the EPA to consider repeal and replacement of Obama’s EPA water rules.

Now the EPA is beginning the process of rewriting the rules, hopefully to take into account the role and authority of the states over intrastate water resources.

“We are taking significant action to return power to the states and provide regulatory certainty to our nation’s farmers and businesses,” said EPA administrator Scott Pruitt in a press release. “This is the first step in the two-step process to redefine ‘waters of the U.S.’ and we are committed to moving through this re-evaluation to quickly provide regulatory certainty, in a way that is thoughtful, transparent and collaborative with other agencies and the public.”

As it now stands with this order and several court rulings, including one from the U.S. 6th Circuit Court of Appeals, the EPA is enforcing clean water rules that were in place prior to the 2015 attempted usurpation of power.

Pruitt would do well to lift heavily from a June 19 letter to him from the attorneys general of 20 states, including Nevada’s AG Adam Laxalt, which offers suggestions on how to include input from the states and retain state jurisdiction over intrastate waters.

Laxalt was one of 23 attorneys general who backed a lawsuit that went all the way to the Supreme Court and resulted in the court saying property owners have a right to sue in court over EPA permitting determinations under WOTUS rules. The federal agencies had circuitously contended that property owners could only go to court once decisions were final, but essentially argued that all permitting decisions are reviewable and potentially reversible and therefore never final.

The attorneys general letter notes the burden the Obama era rules were on land owners, because the discharge of any pollutant — be it mere soil, rocks or sand — required obtaining a permit that is excessively expensive and takes years to obtain.

In that Supreme Court case Chief Justice John Roberts noted that a specialized individual permit, such as the one sought by the plaintiffs, on average costs $271,596 and 788 days to complete, not counting any mitigation costs that might be required.

Further, discharging into “waters of the United States” without a permit can subject a farmer or private homeowner to fines of up to $51,570 per violation, per day.

The attorneys general noted that the Obama water rules violated the Constitution by intruding on the states’ reserved authority under the 10th Amendment and usurped Congress’s authority under the Commerce Clause. They called for an approach that would allow the states the flexibility to design state law in order to protect the water resources within their borders. “It also would provide any state for which EPA attempts to designate certain waters an opportunity to explain to EPA why its regulatory program is sufficient to protect those waters and contest EPA’s determination that those waters significantly affect navigable waters,” they wrote.

It is time to return those 10th Amendment rights to the states.

A version of this editorial appeared this 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.

Bill introduced in Carson City would ban fracking in Nevada

Luddite.

A Las Vegas assemblyman has introduced a bill to ban fracking in Nevada.

According to media accounts Democratic Assemblyman Justin Watkins has stated fracking causes earthquakes, contaminates water, pollutes the air and basically creates an eyesore.

His Assembly Bill 159 would amend state law by adding: “A person shall not engage in hydraulic fracturing in this State. As used in this section, ‘hydraulic fracturing’ means the process of pumping fluid into or under the surface of the ground to create fractures in the rock to facilitate the production or recovery of oil or gas.”

Fracked oil well in Elko County.

First, any earthquakes associated with fracking were not caused by fracking but by pumping fracking waste into injection wells, because the enviros objected to leaving what is mostly water and sand on the surface.

As for contaminating groundwater even the EPA had to stretch to conclude there is a “chance” of pollution. In its report on the topic the EPA scientists said fracking “can impact drinking water resources under some circumstances,” but “the scientific evidence is insufficient to support estimates of the frequency of contamination.” They said the instances of contamination were small in comparison to the vast number of fracked wells across the nation.

First fracking patent in 1866.

Oil and gas wells, with or without fracking, produce oil and gas, the burning of which releases some carbon, OK.

As for being an eyesore, modern fracking techniques eliminate the need to drilling hundreds of wells in close proximity to hit pockets of oil, as can be seen in Bakersfield, Calif. Instead these pockets are tapped by drilling one well and then drilling out horizontally.

Watkins seems to be under the misconception that fracking is some sort of recent untested technique.

The first fracking patent was issued in 1866. It used nitroglycerin explosions to fracture formations. The first commercial application of hydraulic fracking took place in 1949. In many oil and gas fields a majority of wells are fracked at one time or another, either initially or later to prolong the productive life of the well.

In the 1980s oilman George Mitchell combined the techniques of fracking and horizontal drilling to develop the Barnett Shale formation in North Texas, according to a history of his company’s development. It has resulted in a boom in natural gas production and a decline in oil prices, creating countless jobs and growing the economy. It also has cut the nation’s carbon output since gas burns cleaner than coal.

In 2014 the Nevada Division of Minerals Administrator Rich Perry released Nevada’s 20-page revised rules on fracking that require groundwater testing before and after drilling, pressure testing of equipment, notifications to landowners before fracking begins and abiding by strict engineering standards. More than adequate precautions.

Though there have been a few fracked wells in the Elko vicinity in recent years, there reportedly are none at this time.

But there is potential with the Chainman Shale formation, which lies largely in an 80- to 100-mile radius around Duckwater — including almost all of White Pine County, major portions of Nye, Lincoln, Elko, Eureka and Lander counties, as well as parts of a couple of counties in Utah.

The formation is believed to be rich in oil, though most lies 2 to 5 miles underground, making drilling expensive when oil prices are fairly low.

A fracking ban just might kill a number of potential jobs and deprive the state economy and the state tax coffers of revenue. All for no reason.

 

Fracking and horizontal drilling eliminate the need for many pumpjacks in one area, like there in Bakersfield, Calif. (AP pix)

 

 

Greens are turning red over these Trump nominees

Exxon Mobil CEO Rex Tillerson nominated for secretary of State. (Reuters pix)

Now, I’m no fan of braggart-in-chief Donald Trump, but you’ve got to love three of his cabinet choices, if for no other reason than they are making the green acolytes turn red with rage.

Today Trump named Texas oilman and Exxon Mobil Corp. CEO Rex Tillerson to become secretary of State and former Texas Gov. Rick Perry to head the Department Energy. Add these to the nomination of Oklahoma Attorney General Scott Pruitt to head the Environmental Protection Agency and you can see why the climate change Chicken Littles are running around like their heads have been cut off.

Rick Perry nominated to head Energy Department. (Getty pix)

The grease orchard cartel is sure to be angrily opposed by those who have been getting rich on renewable energy subsidies and their Democratic Party allies in Congress.

Though there has been considerable angst about Tillerson’s ties to Russia’s Vladimir Putin, you can count on the greens to thump him on allegations that Exxon has concealed its research on climate change, despite the fact Exxon has bought into the Paris climate deal.

“At a time when the climate crisis is deepening, both the United States and the world deserve much better than having one of the planet’s top fossil fuel tycoons run U.S. foreign policy,” Sierra Club Executive Director Michael Brune bellowed in a statement challenging the appointment. “We urge senators, who are elected to represent and protect the American people, to stand up for families across the country and the world and oppose this nomination.”

With Perry named to head a department he once proposed be eliminated, the greens will be gunning for him since he has long been a climate change denier.

Scott Pruitt nominated to head EPA. (KFOR pix)

Brune said the designation of Perry to head Energy is “an insult to our functioning democracy. Putting Perry in charge of the Department of Energy is the perfect way to ensure the agency fails at everything it is charged to do.” The Energy Department was created by Jimmy Carter following the oil embargo in the early 1970s. The U.S., due to fracking, is no longer relying on Middle Eastern oil.

Pruitt over the years has challenged the EPA’s regulatory overreach repeatedly, often joining with other states, including Nevada, to file lawsuits.

Pruitt said in a statement released following his nomination that Americans “are tired of seeing billions of dollars drained from our economy due to unnecessary EPA regulations, and I intend to run this agency in a way that fosters both responsible protection of the environment and freedom for American businesses.”

The folks at the Sierra Club call him a puppet of polluters and that his appointment is like “putting an arsonist in charge of fighting fires.”

Can anyone remember this much ink being spilled over provious cabinet appointees? Trump might not be draining the swamp but he is sure stirring the waters.

 

 

Newspaper column: Western officials fear new EPA rules could cripple mining operations

There is growing fear among officials across the West that in the waning days of the Obama administration his Environmental Protection Agency may enact regulations that could cost the hard rock mining industry billions of dollars, jeopardizing jobs and entire communities.

Earlier this year, the EPA, as is its wont, settled a lawsuit from a passel of self-styled environmental groups by agreeing to write further regulations requiring additional financial assurances — in the form of expensive surety bonds — that mining sites will be adequately cleaned up and reclaimed at the end of operations.

The court gave the EPA until Dec. 1 to write these new rules.

Lest we forget, it was the geniuses at the EPA who bungled the reclamation of the Gold King mine near Silverton, Colo., a year ago, dumping millions of gallons of toxic-metal-laced pollutants into the Animas River, turning it a bright yellow.

The Western Governors’ Association and the chairs of two key U.S. House committees have sent letters to Gina McCarthy, administrator of the EPA, asking for information about what the agency plans to do and pointing out that the states and various federal agencies already have reclamation bonding requirements in place and that any additional requirements could be duplicative and costly to the industry.

The letter from Energy and Commerce Committee Chairman Fred Upton, R-Mich., and Natural Resources Committee Chairman Rob Bishop, R-Utah, stressed their concerns that the EPA is not analyzing existing federal and state reclamation requirements.

“If the Agency fails to reduce the amount of the CERCLA (Comprehensive Environmental Response, Compensation and Liability Act, otherwise dubbed the Superfund Law) financial assurance obligation to account for these programs, it will result in the unnecessary and duplicative imposition of many billions of dollars of financial assurance requirements on the mining industry.”

The governors’ letter, signed by Wyoming’s Matthew Mead and Montana’s Steve Bullock, asks for an explanation as to why “existing state programs are insufficient to address the concerns …”

A spokesman for Nevada Rep. Cresent Hardy commented, “This administration has an unfortunate track record of issuing onerous regulations that are especially painful for states like Nevada that have large mining sectors. As an active member of the Natural Resources Committee, Congressman Hardy will continue to work with the chairman to hold the EPA accountable and prevent job-killing regulations from doing further damage to our state economy.”

Nevada Mining Association President Dana Bennett has sent a letter to EPA officials saying that the new regulations would have significant economic impact on all miners in the state, “but it will be Nevada’s small miners, who have limited financial and human resources, that will be hit the hardest.”

She also said the proposed rules duplicate currently effective state and federal programs.

Bennett wrote that the EPA has failed to establish a need for further federal rulemaking and has not provided those who will be affected with necessary scientific or economic analysis, noting there has been no cost-benefit analysis and that the costs “appear to vastly outweigh any potential health or environmental benefits.” (2016 Letter re CERCLA)

She also argued that current mines should be exempted from any new programs because it would be fundamentally unfair to add unanticipated regulatory costs that would “threaten the economic viability of the mines and associated jobs and community benefits.”

The National Mining Association has reported that “a growing number of organizations – from state governments to surety underwriters — are expressing concern that EPA is about to impose economically harmful and unnecessary bonding requirements on mineral mining companies.”

In mid-June the House Natural Resources Committee passed a package of 19 mining bills to address funding, technical and legal impediments to mine cleanup efforts. Of course, that will not deter the EPA.

Bishop said at the time, “If we’ve learned anything from the EPA’s Gold King mine disaster, it’s that the federal government lacks the expertise, resources and capacity to reclaim abandoned mines. … This package provides much-needed liability protections and creative solutions to develop the technical talent and funding resources to ensure cleanup is done safely and without further delay.”

According to the Nevada Department of Employment, Training and Rehabilitation, mining accounts for a large majority of the jobs in Esmeralda, Eureka and Lander counties and a large percentage in several other rural counties. Excessive regulatory costs added to the already uncertain fortunes of mining companies in a volatile market could devastate some communities that rely on gold, silver, copper and, perhaps someday, lithium production.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

The Coeur Rochester silver mine in the Humboldt River Basin (USGS photo) States.

Editorial: SCOTUS curbs WOTUS, but Congress must act

The U.S. Supreme Court (SCOTUS) this past week acted to finally curb, but not eliminate, the unfettered power of the Environmental Protection Agency and the Army Corps of Engineers to control every stream, ditch, wetland or muddy hoof print that might eventually spill a few drops of water into any rivulet that might occasionally be navigable with an inner tube.

Under the agencies’ vague definition of what exactly are waters of the United States (WOTUS) under the Clean Water Act of 1972, the existence of any water on one’s own property promulgates the necessity to obtain a permit before doing anything that might “pollute” that water with anything, including dirt.

In a unanimous decision in Army Corps of Engineers v. Hawkes Co., the court said property owns have a right to sue in court over permitting determinations. The federal agencies had circuitously contended that property owners could only go to court once decisions were final, but essentially argued that all permitting decisions are reviewable and potentially reversible and therefore never final.

In December 2010, the Hawkes Co., which mines peat for use on golf courses among other uses, applied for a permit to mine peat on a 530-acre tract of property it owns in Minnesota. The Corps of Engineers told the company they would have to do numerous tests that would cost more than $100,000.

In February 2012, the Corps determined the land contained “water of the United States” because its wetlands had a “significant nexus” to the Red River of the North, located some 120 miles away. The owners appealed and got the same result, essentially a denial of permission to mine their own property.

In the opinion of the court, Chief Justice John Roberts points out the definition of WOTUS used by the EPA and the Corps includes “land areas occasionally or regularly saturated with water — such as ‘mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, [and] playa lakes’ — the ‘use, degradation or destruction of which could affect interstate or foreign commerce.’ The Corps has applied that definition to assert jurisdiction over ‘270-to-300 million acres of swampy lands in the United States — including half of Alaska and an area the size of California in the lower 48 States.’”

Roberts also noted that a specialized individual permit, such as the one sought by Hawkes, on average costs $271,596 and 788 days to complete, not counting any mitigation costs that might be required. He said the permitting process can be “arduous, expensive, and long.” No kidding. He left out futile.

The Corps told Hawkes after its denial of a permit that it could appeal administratively, but not judicially, or simply do the work without a permit and risk a fine of $37,000 a day and criminal prosecution.

The court said Hawkes has a right to sue in court. So, it curtailed the process but did not put a stop to the draconian obstruction of the right of personal property and burdensome expenses.

In a concurring opinion, Justice Anthony Kennedy, joined by Justices Clarence Thomas and Samuel Alito, said that the EPA and Corps “ominous reach” on interpreting the Clean Water Act “continues to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation.”

Nevada Attorney General Adam Laxalt, who along with 22 other attorneys general filed an amicus brief in this case, applauded the judgment.

“This unanimous U.S. Supreme Court decision vindicates our position that the Obama administration has continually attempted to avoid the rule of law and judicial review of its unlawful actions,” said Laxalt. “The Obama administration seems determined to move as far and as fast as possible to unilaterally change our constitutional system and our congressional laws. … Fortunately in this case, our checks and balances have protected Nevadans from truly unprecedented federal overreach.”

Congressman Cresent Hardy also lauded the court ruling, saying, “The Court’s unanimous ruling in the Hawkes case reins in an unchecked executive branch.  Property owners should not have their lands locked up by a ‘final agency action’ and be forced to go through a prohibitively expensive permitting process without the ability to appeal the decision. Thankfully, the Supreme Court agrees.”

But the reality is that this decision, while welcome, merely puts a Band-Aid on a hemorrhage. Congress must rewrite the Clean Water Act and properly define WOTUS for the rapacious federal agencies lest they grind commerce in this country to a halt.

The House and Senate passed resolutions that would have blocked the EPA water rule, but in January the Senate failed to override Obama’s veto.

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.