Living with Tyranny...

 Building Stream Protection

Living with Tyranny

Another federal exemption?

By Stephen L. Wilmeth

            Was there any difference between the South Carolina delegation seeking to make amends with President Lincoln in the last days before the Civil War and the advocates from across the West that gathered in Phoenix August 5 to discuss actions being taken to bring equity to the people of their respective states?

            Ostensibly, the issues in both cases were and are equal application of personal freedoms and better management of natural resources that are vital to the well being of the citizenry. The basis of the discussion elevated the role of local expertise to address the health of rural economies in the midst of landscape, wildlife, and natural resource destruction by federal management.

            “Gathering some of the greatest constitutional experts in the country”, the forum process seeks remedies to maintain access to our lands with the expectation of better management and a brighter future for our children.

            Nothing but good luck is offered the organizers for future gatherings, but we must all recognize the truth about Lincoln and where this country finds itself today. Lincoln wasn’t interested in extending and strengthening the Jeffersonian model of empowerment of the states much less for the individual. He was interested in consolidating power into the hands of the federal government. In the process, Lincoln eliminated the single most important Constitutional remedy for curtailing the stepwise growth of the federal tyrannical juggernaut … the right to secede when constitutional morons buy their way into power.

            BP missed this one

            FOX and RFD finally started providing coverage of the EPA negligence and poisoning in the upper Colorado River watershed. The reports, however, were a far cry from the national siren serenade of condemnation when British Petroleum suffered its failure in the deep water well in the Gulf of Mexico. Nearly 17% of air time on the first day of coverage was aimed at that event. Everybody knew about the debacle and the accused corporate wrongdoers.

            In this case, the sludge was from the Gold King Mine in southwestern Colorado and dumped into an Animas River tributary. We can only imagine the accusations that would have been hurled at BP if it had been the culprit rather than the agency in the release of the soup that contained lead, arsenic, cadmium, aluminum, copper, and calcium. The press would have revealed the smallest suggestion of fault of BP and its CEO.

            With the shoe on the other foot, try to find any similarity in the character evisceration of Gina McCarthy, the EPA director. McCarthy simply joins an ever expanding roster of federal power brokers who oversee actions that are destructive to rural communities but are never doubted.

            In this case, McCarthy and the EPA are in breach of their own final ‘Water of the U.S. Rule’. This is the recent agency move to dramatically expand its unlegislated authority by simply rewriting the Clean Water Act through arbitrary regulatory decree. The change conveniently eliminates the word “navigable” from the extent of their authority over U.S. waters. That change is akin to that agency altering the Constitution by adding the word “former” to its archived existence.

            In the Animas River incident, the EPA may have outwitted itself. It could well be postured for greater culpability stemming from its self-crafted authority. The investigation should start by demanding to see the federal permit required for the discharge of pollutants in the Gold King slurry that changed the downstream water color from deep Colorado blue to pumpkin soup ochre.

The hypocrisy is stifling.

The EPA finally reported contamination “had not revealed hazardous levels of contamination”, and yet testing the night before had revealed arsenic levels in the river were running more than 100 times the historic levels. Lead was running 3,800 times the amount detected from prior to the plume arrival at the same location. A list of actions taken on the basis of the agency’s related non-hazardous levels of contamination included closing the river to fisherman and recreation users, warnings to farmers not to apply the water to crops, and demands for ranchers to seek alternative sources of drinking water for their livestock. Official warnings came from the president of the Navajo Nation, the Southern Ute Nation, and New Mexico’s Governor’s Office, Environment Department, Department of Agriculture, Game and Fish Department, Office of the State Engineer, and the New Mexico Cattle Grower’s Association along with the (San Juan) Lower Valley Water Users Cooperative Association.

What wasn’t reported, though, was the Animas spill per capita impact on communities of the upper watershed of the Colorado (8500 water users in the cooperative association west of Kirtland area alone) … dwarfs the BP oil spill in the Gulf.

The Navajo lead

Navajo Nation President Russell Begaye announced he will take legal action against the EPA on behalf of his people and their natural resources. A good place to start would be to review the time line of the BP oil spill and the court of public opinion. A demand for a public apology from Director McCarthy would be action item number one with a parallel demand for her resignation.

BP was treated no differently.

President Begaye should also consider commiserating with the Public Lands Strategy Summit organizers to seek a coalition of support to have his people included in the attempt to bring equity to all affected people in their respective western states. A lawsuit is one of the only remedies local citizenry has to protect their sovereign rights. Any legal argument now has precedence from the Gulf disaster.

BP was scourged in their oil spill involvement.

President Begaye and the summit officials should also acquaint themselves with the expanse of EPA’s jurisdictional drift. One pertinent example by the agency is the matter of “wetlands”. The Clean Water Act does not authorize the regulation of wetlands, but, yet, the agency along with the Corps of Engineers now has a nation wide regulatory regime on wetlands. In fact, that regulatory quagmire, based on the theory that the placement of clean sand in any dry area results in the eventual pollutant discharge into waters of the U.S., essentially circumvents the Supreme Court ruling that once rejected the agency’s efforts to include “neighboring wetlands, minute tributaries, man made ditches and drains, and even isolated water bodies with no hydrological connection to navigable waters whatsoever”. The upshot is the agency has unilaterally expanded its authority to include every puddle of seasonal water as well as “all chemical, physical, or biological integrity of all downstream water”.

Since virtually nothing is now off limits for regulatory enforcement, nothing should be exempt from the liabilities impacted by this blatant example of agency mismanagement.

Stream Protection Rule and the outcome

President Begaye and others are called upon to dictate what that sphere of impact actually is. That premise is emphasized in yet another agency document.

EPA Director McCarthy’s predecessor, Lisa Jackson, joined with then Department of Interior’s Secretary Ken Salazar and the Corps’ acting assistant Secretary, Rock Salt, to sign a memorandum of understanding implementing interagency stream protection rules. Although, the matter dealt with the impact of coal mining on downstream waters, it serves as the model for the EPA responsibilities in the matter of the Animas River breach.

The agencies agreed that any perpetrators of crimes against rivers would be forced to assume responsibility of any material damage to the hydrological balance inside and outside of the permit area. They must also demonstrate where that damage level is reached in both the surface water and groundwater within the sphere of impact. Restoration of all perennial and intermittent streams to a level of preexisting conditions will be required.

There was agreement that the agencies would hold public meetings and encourage local engagement in ongoing environmental assessments. In the case of the Gulf oil spill, that became code talk for offering grant money for the purpose of scientific discovery and finding environmental damage that could be stacked on top of an expanding indictment against BP.

Based on the expanse of the regulatory creep, the agency’s own policies demand that all downstream waters in addition to those peculiar references to “… outside the permit area” must be considered in mitigation and penalty enforcement. By definition, that means all of the tributaries of the Colorado River watershed must be evaluated. That includes scores of endangered species as well as the comprehensive assessment of system health of major areas of the sovereign Navajo Nation, Mexico, and the states of Colorado, New Mexico, Arizona, Utah, Nevada, and California.

The Animas River in addition to the San Juan, the Green, the Little Colorado and others must now be considered within the scope of the debacle. Even the Gila with its tributary system of the San Francisco and San Pedro are part of that greater watershed.

 Stephen L. Wilmeth is a rancher from southern New Mexico. “No condemnation has been registered by the New Mexico environmental and social justice warriors … progressive Senators Udall and Heinrich.”

I'm pleased to see Wilmeth identify Lincoln as the transgressor of our Constitution that he surely was, i.e., The Real Lincoln.