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Give them a Ditch and They’ll Take a Gully…

June 16, 2012

The Environmental Protection Agency (EPA) is trying to assert control over small ‘wetlands’ such as ditches and gullies.  This kind of regulatory encroachment falls under the rubric of ‘;administrative law.’  Congress is the sole Constitutional repository of the legislative authority of ‘We The People.’  However, most laws require administration, and the rules of how a law is administered are usually left, with greater or lesser specificity as to how this is to be done, to the enforcer of the law – the Executive Branch.

The Executive Branch is a vast array of departments, agencies, offices and bureaus.  The Federal Government’s Executive Branch long ago passed the million employee mark.  That there may be some over-reach and ‘mission creep’ is not surprising; its’ absence would be more so a cause for surprise.  The EPA’s decision here is thus only one of many such actions that happen regularly, if not daily, in the United States.

In this case, the EPA intends to regulate gullies and ditches by classifying them as ‘wetlands’ under the authority granted them by the Clean Water Act to regulate navigable wetlands and other bodies of water.  This particular case of administrative over-reach has Congress, the author of the law, debating action to curb what some of its’ members see as de facto legislation – interpreting a law in such a way as to make, effectively, a new law out of it.

The tenor of an agency’s actions often reflects that of the spirit of the Administration in power; this is not always the case, as career civil service executives may have long tenure and wide latitude in the performance of their organization’s duties to such an extent that they have very nearly policy-making power of their own.  Some agencies are even designed to be ‘independent’ of political control and may thus act in ways that fly in the face of the spirit of the age, politically speaking.

This situation would appear to be one of the former kind, where the agency acts in concert with the wishes of the Administration.  their actions tend to expand the Clean Water Act well beyond the plain English of the law itself, as well as that of the intent of its’ authors.  This tactic serves executive power at all levels of government as a means of going around the legislative branch to achieve policy goals.  In other words, it is an example of the end justifying the means.

It should not surprise that the clear language of a law has been turned on its’ head by administrative action.  The only novelty here is that, prior to the rise of the ‘administrative state’ as a fact of daily life (ca. 1970), this kind of legislation-by-any-other-name was the practice of activist judges and not, generally, of administrators.  Hubert Humphrey, one of the principal authors of the Civil Rights Act of 1964, famously said that he would eat it, page by page, if it were ever used to justify racial quotas, which it clearly forbade.  His is only one of the more noteworthy examples of this kind.

What remains to be seen is if this action will produce an equal and opposite reaction of a magnitude to stop it.  The result, either way, will tell us something about the health of a system built around the separation of powers and intended, especially, to separate the legislative and executive functions – a cornerstone of free governments of all kinds.

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