Reid needs to stand against EPA’s water overreach

Nevada’s senior senator is putting the finishing touches on a long career in public service. Presumably, he will then come home to teach and to comment on public affairs from his unique perspective as a major participant in the governance of our great nation.

But before he does, Harry Reid has a big question left to answer: Are we still a “government of laws, and not of men,” as John Adams phrased it?

Reid can answer in the affirmative by lending his support to S.1140, a bill in the Senate that would not only curb one of the biggest power grabs by any U.S. government agency in the history of our country, but also would remind certain bureaucrats about the rule of law.

By now, every Nevada business owner is keenly aware of the Environmental Protection Agency’s new rule, scheduled to take effect Aug. 28, greatly expanding its authority under the Clean Water Act to include virtually every pond and ditch in the nation.

Did anyone really think two U.S. Supreme Court decisions would have succeeded in reminding the EPA and Army Corps of Engineers about their jurisdictional limits on navigable waters? (Rapanos v. United States and Solid Waste Agency of Northern Cook County SWANCC v. U.S. Army Corps of Engineers) The EPA in particular has always been the most rapacious of federal agencies, and habits are the strongest force in nature.

“The Clean Water Act was written to govern interstate navigable waters,” said attorney Karen Harned of the National Federation of Independent Business. “No one doubts that the Mississippi River or the Great Lakes are covered by these rules. The problem is that the agencies [EPA and Army Corps of Engineers] want their regulations to spread far upstream to places where even a toy boat couldn’t float.”

Equally important to its unprecedented power grab, the EPA’s new rule also violated the law, in this case the Regulatory Flexibility Act. As Harned’s colleague Dan Bosch, NFIB’s manager of regulatory affairs, put it, “The process was rigged in favor of the agencies. They simply decided that they didn’t even need to consider the effects on small business. That analysis is required by law. It’s not optional.”

Dr. Winslow Sargeant, former chief counsel for the U.S. Small Business Administration’s Office of Advocacy, agreed. “The rule will have a direct and potentially costly impact on small businesses,” wrote Sargeant in an October 2014 letter to the EPA and Army Corps. “The limited economic analysis which the agencies submitted with the rule provides ample evidence of a potentially significant economic impact. Advocacy advises the agencies to withdraw the rule.”

Whether Harry Reid agrees with the EPA rule, it was clearly promulgated with a cavalier disregard for the law, a matter that not only insults the American people, but diminishes the significant pro-business accomplishments of Reid’s Democratic predecessors.

In 1979, four Democrats — Sens. Gaylord Nelson of Wisconsin and John Culver of Iowa, and Reps. Neil Smith of Iowa and Andrew Ireland (then a Democrat) of Florida — teamed up to pass the Regulatory Flexibility Act. While he waited for it to land on his desk, President Jimmy Carter started advancing as many of the bill’s provisions as he could through executive actions, noting that “regulations often impose heavier burdens on small organizations than on big ones.”

Thirteen years after the RFA became law, President Bill Clinton issued Executive Order 12866, to remind federal agencies to adhere to the RFA. Three years later, he signed into law the Small Business Regulatory Enforcement Fairness Act, which strengthened the RFA.

Reid would not be alone in supporting the latest bill. It currently has 42 co-sponsors, including influential Democrats Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota and Joe Manchin of West Virginia.

“Farmers, ranchers, dairymen and others, on and off the farm, are in widespread panic with the finalization of this rule,” writes agricultural expert and former congressman Larry Combest in The Hill, “because not only does it allow EPA onto their land, but it throws the gate wide open to environmental group-led citizen lawsuits that promise to carry the rule’s reach beyond what even the EPA envisioned. … This rule carries with it fines under the law to the tune of $37,000 per day, but comes with absolutely no clarity for farmers as to what side of the law they are now on.”

Reid cannot remain silent on S.1140, not without degrading the contributions of his party’s predecessors and tarnishing whatever legacy he hopes to convey.

Randi Thompson is Nevada state director for the National Federation of Independent Business.