As we continue to look down the barrel of a serious drought, it’s probably ironic that the federal agencies who believe that they are supposed to be regulating the Waters of the United States (WOTUS) announced recently that, since we have a new administration occupying the White House, we need to rewrite the regulations that the last guy wrote. Being in charge of swamps, wetlands or places where there isn’t even any water is a high priority for some of those who believe they are needing to regulate WOTUS, using the Clean Water Act as their excuse for federal intrusion to control.
The Obama crew somewhat started with this federal expansion through rule-making and defining what they would like to consider as being “water” which could fit into their view of needing their oversight. Over the years though this same type of federal attempts for control have gone through a variety of interesting dynamics and creative federal government power grabbing. The Clean Water Act has this bothersome point of view that the federal government can only regulate “navigable waters.” Along the way of trying to build their mind-boggling connections we’ve got a trail of everything from thinking that it should include the glance of a flying goose to actual imagine that dry “streambed” belongs under our rule too.
The two federal agencies who stay up late dreaming of new ways to control in this regard are the Environmental Protection Agency (EPA) – which began as an Executive Order conceived by then President Richard Nixon and later approved to become an agency by Congress – and the U.S. Army Corp. of Engineers. Their recent announcement that they will make another try and defining a workable meaning for what they can regulate as “WOTUS” came about on June 9th when they finished their “review” of the Navigable Waters Protection Rule that went into place on April 21, 2020 when the Trump Administration went through the regulation writing system.
President Biden commanded that whatever the Trump Administration wrote needed to be reviewed with an eye on finding good reason to not let anything fashioned by those guys the ability to be continued.
“After reviewing the Navigable Waters Protection Rule as directed by President Biden, the EPA and the Department of the Army have determined that this rule is leading to significant environmental degradation,” EPA Administrator Michael Regan announced in his agency’s news release on the subject.
In explaining their view that “significant environmental degradation” was taking place, the agencies noted that there is “the lack of protections is particularly significant in arid states, like New Mexico and Arizona, where nearly every one of over 1,500 streams assessed has been found to be non-jurisdictional.”
Without extremely honest details about those “1,500 streams” and their exact circumstances, it isn’t too hard to imagine that in these streams, “significant in arid states” possibly are streams which aren’t navigable and therefore fall outside of the parameters which the federal government is supposed to regulate under the law. It is also possible that while the “1,500 streams” might be capable of being managed by state authority.
Just because the federal government can’t use their all-powerful authority, doesn’t automatically mean that there is a “lack of protections.”
Those who depend on the land and rely on clean water, farmers and ranchers fit into this group and don’t require the federal government, in particular EPA and the Army Corp. of Engineers to issue edicts and require permits to farm their land. They shouldn’t need a team of lawyers and consultants to deal with those edicts coming from federal agencies who seem to be more about forcing their agenda of control than even paying attention on whether there is water present for the Clean Water Act to apply.
The Navigable Waters Protection Rule brought clarity and certainty to clean water regulations and other types of operational activities.
WOTUS going forward must fit with the constraints of the Clean Water Act and not be used (as the proposal coming from the Obama Administration) as a way of managing land use and harming private property rights. Nevada wasn’t mentioned in the arid states who don’t have enough of their partial or ephemeral water ways under the thumb of federal agencies. That might be because so much of the land is already under federal land management they don’t have enough private property to chase in trying to limit what can be done on the lands?
For whatever reason, federal efforts to use WOTUS for expanding their imposition of control must be dealt with and responded to. First, this needs to be carried out by paying attention to whatever process the agency heads have “promised” in their gaining “input from a wide array of stakeholders…” Protecting water doesn’t automatically require a federal permit to accomplish the objective of clean waters.
This new regulatory initiative should not become the next round to the land grab that the 2015 WOTUS Plan dreamt of.
By Doug Busselman | NFB, Executive Vice President