Environmental Protection Agency

Trump, Navigable Waters, and the EPA's WOTUS Regulations

Rolling back a "federal land grab" or instituting an "unmitigated disaster for fish and wildlife, hunting and fishing, and clean water"?



In 2015, the Environmental Protection Agency issued a new Clean Water Rule, a.k.a. Waters of the U.S. (WOTUS) rules defining the jurisdiction of the agency over rivers, lakes, creeks, estuaries, ponds, swamps, prairie potholes, irrigation ditches, and intermittent rivulets. The new rules were based on the EPA's interpretation of the provisions of the 1972 Clean Water Act that mandated that the agency devise "comprehensive progams for water pollution control" aimed at "preventing, reducing, or eliminating the pollution of the navigable waters and ground waters and improving the sanitary condition of surface and underground waters." The agency reasoned that it had authority to regulate non-navigable upstream water sources like farm ponds and intermittent streams since they could carry pollution down to navigable waters like lakes and rivers. These new rules brought nearly half of Alaska and a total area in the lower 48 states equivalent to the size of California under the Clean Water Act's jurisdiction.

The upshot is that under the new more extensive regulations, ranchers, farmers, and property developers had to seek permission from the U.S. Army of Corps of Engineers to make changes that might affect minor sources of water on their land. Obtaining permits could take years and cost thousands of dollars. At least 32 states have sued to prevent the new regulations from taking effect, and the Sixth Federal Appeals Circuit Court stayed the new rules in October, 2016.

At the Conservative Political Action Conference meeting last week, new EPA Administrator Scott Pruitt declared that the Obama administration's WOTUS regulation had "made puddles and dry creek beds across this country subject to the jurisdiction of Washington DC. That's going to change." The new executive order that President Trump is expected to sign today directs that EPA to reopen the rulemaking process to repeal and revise the WOTUS rules. The agency is explicitly told to use the standards set out in former Supreme Court Justice Antonin Scalia's plurality opinion in the 2006 Rapanos vs. United States case. In his opinion, Scalia declared:

In sum, on its only plausible interpretation, the phrase "the waters of the United States" includes only those relatively permanent, standing or continuously flowing bodies of water "forming geographic features" that are described in ordinary parlance as "streams[,] … oceans, rivers, [and] lakes." See Webster's Second 2882. The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall. The Corps' expansive interpretation of the "the waters of the United States" is thus not "based on a permissible construction of the statute."

Of course, various activist groups are alarmed at the potential rollback of EPA authority. For example, Trout Unlimited issued a statement:

Gravity works cheap, and it never takes a day off. The Administration cannot stop water flowing downhill—and we all live downstream. To be effective, the Clean Water Act must be able to control pollution at its source, upstream in the headwaters and wetlands that flow downstream through communities to our major lakes, rivers, and bays. … If Justice Scalia's direction is followed, 60 percent of U.S. streams and 20 million acres of wetlands would lose protection of the Clean Water Act; an unmitigated disaster for fish and wildlife, hunting and fishing, and clean water.

In favor of Trump's new executive order American Farm Bureau Federation President Zippy Duvall declared:

President Trump's executive order to ditch the Waters of the U.S. rule is a welcome relief to farmers and ranchers across the country today. The flawed WOTUS rule has proven to be nothing more than a federal land grab, aimed at telling farmers and ranchers how to run their businesses. The Environmental Protection Agency failed to listen to farmers' and ranchers' concerns when drafting the rule and instead created widespread confusion for agriculture. Under the rule, the smallest pond or ditch could be declared a federal waterway.

In any case, the EPA review process will take years to complete.

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  1. If only the EPA was part of the deep state and had something untoward about the administration to leak.

  2. A side issue to this is the use and abuse of the interstate commerce power. The reason why the Act only applies to “Waters of the United States” is that Congress enacted it under the interstate commerce clause. And the reason why the term was defined to be flowing waters and permanently standing water is because those bodies were the limits of the federal commerce power. The CWA has never applied to ground water for that reason.

    So when the court and later Obama changed the definition, they also once again wrongly expanded the interstate commerce power further beyond its lawful boundaries.

  3. Zippy Duvall…

  4. “we all live downstream”

    Fake news alert!

    1. I live on the top of my own personal hill. Everyone else gets my runoff. Bwahahahaha.

      1. Exactly!
        Who gives a shit? The economy is scary, the market is in mega-bubble territory, wars persistent, debt bomb, angry guys in the middle east, crime seems to be pretty bad in my city, our president continues to pander to the tranny bathroom scare of 2016, and everything we hear on the news is probably 100% bullshit.

        Address at least a few of those things then talk to me about the environment, global anthro weather, and polar bears.

  5. If my admittedly kooky neighbor is to be believed, my 1/3 acre (white picket fence and all) in the middle of a 100+ year-old residential neighborhood in the western suburbs of Chicago is somehow subject to some of these rules. Never really looked into it, but I guess it’s good to know that maybe I can now piss out both my kitchen and bedroom windows without asking for permission.

  6. Missing from the discussion is the realization that there are not mustache twirling villains eager to pollute their land or their neighbors’. Obama was just pandering to the Marxists like Bill Clinton did when he executed the previous frighteningly criminal land grab. politicians should all be prosecuted at the end of their terms as a matter of course.

    As always is the case, the CWA was an overzealous supposed remedy to what were a few ignorant practices of a few businesses up until the 70s.

    Federal laws telling people how to run their businesses are not important anymore and are only serving to possibly punish a few scarce instances. Most all americans have been trained to protect the environment and most property owners and businesses do just that. All of these laws should be abolished.

  7. Screw Trump, this BS needs to be permanently shut down by the SCOTUS: what a person does on his farm or back yard has (in general) nothing to do with navigable waters. Pair this with a repudiation of Wickard v.Filburn and get the feds out of local or private affairs.

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