The Minnesota Free Market Institute submitted a public comment last week to the EPA’s “Guidance” on the Clean Water Act. Under the leadership of policy fellow, Don Parmeter, we critiqued the Guidance and concluded that it should be withdrawn. We also submitted a letter from a coalition of individuals and organizations.

Why? The Obama administration, through the President’s Council on Environmental Quality, Environmental Protection Agency, and the U.S. Army Corps of Engineers, wants to control all the land and water in Minnesota.

Legislation that would have given the federal government that kind of unprecedented control went up in flames last year along with the 36-year political career of the bill’s author, Minnesota Congressman James Oberstar. But the Obama Administration won’t take no for an answer, and is now attempting to ignore two U.S. Supreme Court decisions, the will of Congress, the rights of state and local governments, and the vast majority of the American people.  Through this proposed “Guidance'” document, federal jurisdiction would be greatly expanded to effectively seize control of all water and land in the country.

This outrageous proposal has the backing of the wealthy and powerful environmental lobby, so we need to educate Minnesotans and our leaders to prevent this Guidance from becoming the “new” reality in Minnesota.

We will send our comment and that of our coalition members to our Congressional delegation with a special note to Senator Amy Klobuchar who is a member of the Senate Environment and Public Works Committee, and  co-author of the modified Oberstar/Feingold Clean Water Restoration Act that passed the Committee in June of 2009.

Here is an excerpt: This Guidance attempts to clarify the scope of the Agencies’ jurisdiction under the Clean Water Act following the 2006 decision by the U.S. Supreme Court in Rapanos v. United States. Through these actions, the Agencies expect to provide clarity for field staff and the regulated community, and fulfill the full extent of their obligations under CWA. The intended clarity, however, will not be provided by the Guidance document, because it leaves unresolved questions of proper rulemaking procedure, runs contrary to recent Supreme Court decisions, provides an unduly broad and ambiguous test for jurisdiction, and is insufficiently supported by scientific and economic data in its cost-benefit analysis.

And our Conclusion: In summary, the Agencies should take into account the following suggestions. Firstly, the content of this action does not lend itself to guidance for the reasons previously mentioned above, and ought to be immediately promulgated through a rulemaking which would be afforded the statutory safeguards of the APA instead. We reject the idea that the Guidance should serve temporarily until it can be replaced by a final rule. Secondly, because the content of this Guidance is clearly at odds with Supreme Court precedent, the standards for determining jurisdiction should be reconsidered, and promulgated through the rulemaking process. Thirdly, the standard for significance expressed in the Guidance is inappropriate, both because of court precedent and because it does not grant either clarification or certainty to those who must abide by it. Fourthly, the Agencies overlooked a number of cost factors which would seriously impact the cost-benefit analysis provided for in this Guidance, and which, if included, would make a strong case against proposing these standards through a guidance document rather than through the rulemaking process. Barring further analysis, the Agencies should clearly specify that the Guidance will only affect CWA Section 404 programs.

You can read the entire 14 page comment here. 

We will continue to educate Minnesotans and our elected officials about the danger of this Clean Water Act Guidance in the months to come.