The statute is the perfect tool for a federal agency deluded by a mission to save a planet that is two-thirds water. It provides the EPA with a rationale for a restrictive new reading of “valley fill,” possibly a new selenium standard, a club against state agencies and a sweeping definition of its power over agriculture and industry.

Already a cascade of court rulings and the EPA’s relentless efforts to expand its authority are threatening to cut coal production much as the EPA’s air rules have cut coal demand. Last month a federal district court, reversing an earlier ruling, confirmed the EPA’s right to retroactively veto a valid, already approved mining permit. Mingo Logan Coal Co. spent millions of dollars over nearly a decade to prepare its Spruce mine permit. Approved by the EPA, the Army Corps and the state of West Virginia in 2007, the surface mine permit had been in effect for three years when President Barack Obama’s EPA came to town and tore it up.

The opinion makes for sobering reading. Despite the company’s adherence to all applicable laws, said the court, the EPA can set the bar higher and withdraw the permit, ignoring coal’s contributions to the local economy, to national energy supply and good jobs. Deferring to the EPA’s invention of “substantial new information,” the court approved the agency’s decision to override earlier state and federal decisions.

The court did share industry’s “misgivings” that a sudden voiding of Section 404 permits leads to market uncertainty. These misgivings are now widespread. More than 184 organizations representing scores of agriculture, construction, housing and energy industries asked Congress this spring to curb the EPA’s regulatory appetite.

The ruling prompts the question: What assurance do investors have if environmental bureaucrats can decide at any time to pull a permit? EPA Administrator Gina McCarthy said that’s a non-issue, that we’re all paranoid victims of “crazy misunderstandings.” In fact, explains McCarthy, the EPA is only trying to strengthen certainty. In her best Orwellian speak, she said her agency’s attempt to stretch the definition of Waters of the United States far beyond the traditional “navigable waters” — to include minor tributaries and rain-filled puddles — will actually remove the uncertainty in the law created by ambiguous Supreme Court definitions.

“Certainty” in this government newspeak means you can be certain your investment is no longer protected by a valid permit. It won’t be if Congress lets the EPA get away with this claim to regulate virtually anything wet as a “Water of the U.S.”
The National Mining Association’s (NMA) analysis shows how this latest regulatory stretch could extend to on-site ponds and ditches or any area that temporarily collects rainwater. Once upon a time, you needed a permit if an endangered species was on your property. In today’s version, you may need a permit if water is on your property.

Critics are digging in. The NMA, the National Association of Realtors, the Farm Bureau and the National Federation of Independent Business are having none of this. The EPA has even managed to split the administration after the Small Business Administration warned Big Brother it has gone too far this time.

Congress may agree. This year more than three dozen Democrats joined 227 House Republicans to pass a bill that would stop the EPA before it adds still more “certainty” to its reputation for regulatory incontinence. If voters hand the GOP control of the Senate, the bill could become law. Fearing the election backlash, the EPA pushed the Waters of the U.S. decision off until mid-November. A punt is better than a sack.

In 1984, Orwell’s dystopian fantasy, the Ministry of Plenty managed the economy — meaning rationing and starvation. In our dystopian arrangement, the ministry managing environmental protection decides which industries prosper, which jobs are destroyed, which communities survive.


Luke Popovich is a spokesperson for the National Mining Association, the industry’s trade group based in Washington, D.C.