Regulation

Trump Administration Repeals Federal Protections on Puddles, Dry Stream Beds, Some Ditches

Hysterical reactions greet the White House's modest changes to federal clean water rules.

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Another day, another barrage of hysterical reactions to a marginal regulatory reform. The latest cause for concern is the White House's finalized clean water rule that renounces the federal government's ability to regulate ponds, puddles, and (some) ditches.

Yesterday's regulation replaces the prior Waters of the United States (WOTUS) rule issued by the Obama administration in 2015. The Obama-era rule was controversial from the get-go, with multiple Red states filing legal challenges claiming it exceeded the federal government's authority to regulate water pollution. A slew of federal court rulings stayed the implementation of the rule in over half the states.

The new rule released yesterday is intended to pare back the federal government's regulatory powers to something closer to what Congress intended when it passed the 1972 Clean Water Act.

"All states have their own protections for waters within their borders, and many regulate more broadly than the federal government," said Environmental Protection Agency (EPA) chief Andy Wheeler at a homebuilding conference in Las Vegas today. Wheeler's department, alongside the Army Corp of Engineers, is responsible for writing and implementing the new clean water rule. "Our new rule recognizes this relationship and strikes the proper balance between Washington, D.C., and the states."

Most media outlets reporting on the rule change went with a different framing.

The Trump administration would "strip away environmental protections for streams, wetlands and groundwater, handing a victory to farmers [and] fossil fuel producers," wrote The New York Times. "California will be hit hard as Trump administration weakens clean water protections," warned the Los Angeles Times. "Trump erodes water protections," declared Politico.

"This will be the biggest loss of clean water protection the country has ever seen," Southern Environmental Law Center lawyer Blan Holman told the Times.

These articles all note that the new rules would remove federal authority from a huge percentage of streams, ponds, and other waters. That it has that effect is evidence, not of the Trump administration's radicalism, but of the overreaching nature of the previous clean water rules, says Tony Francois, an attorney with the Pacific Legal Foundation.

"It may be factually true that this will regulate a smaller swath of private property," Francois tells Reason, "but the reason for that is what they were doing before is illegal."

Francois and the Pacific Legal Foundation have represented several clients who were hit with EPA lawsuits, fines, and in one case actual prison time for doing things like digging ditches on their own property.

They include Wyoming rancher Andy Johnson, who the EPA sued for millions of dollars after he dug a small pond on his property, and Chantell and Mike Sackett, who've been fighting a 13-year court battle with the EPA over whether they can build a house on a vacant lot they own in an Idaho subdivision.

All of the Pacific Legal Foundation's clients were targeted for violating the less expansive, pre-2015 WOTUS rule.

Legal cases about the limits of what the federal government can regulate under the Clean Water Act stretch back decades. That law, which sets water quality standards and requires those emitting pollutants into regulated waters to obtain an EPA permit, gives the federal government power over the country's "navigable waters."

The law defines those navigable waters rather vaguely as "the waters of the United States." For decades, federal agencies claimed the power to regulate stream beds that were dry most of the year, ponds on private property, and even roadside ditches, all on the theory that these small bodies of water would eventually filter into navigable waterways.

In the 2006 decision Rapanos v. United States, a plurality of the Supreme Court rejected what it saw as the feds' effective claim of authority over all water in the country, instead saying that they could only regulate "relatively permanent, standing or flowing bodies of water" that had a "continuous surface connection" with "waters of the United States."

But because that was only a plurality opinion, with then-Justice Anthony Kennedy writing a concurring opinion saying the federal government had power over anything with a "significant nexus" to a navigable waterway, legal and regulatory disputes over the scope of the Clean Water Act have continued to the present day.

When Obama's EPA issued its 2015 WOTUS rule, it immediately attracted lawsuits, which resulted in federal courts in North Dakota, Texas, Georgia, and Oregon issuing rulings staying the rule's implementation in 27 states. When Trump administration tried to delay implementation of the rule to 2020, the courts slammed that down too, so the rule went into effect in 22 other states. (There's an open question over whether an injunction applies to New Mexico.)

To clear up some of this confusion, the Trump administration announced that it would be rescinding the 2015 WOTUS rule completely and replacing it with its own version. The result, called the Navigable Waters Protection Rule, is what was released yesterday.

The new rule specifically excludes certain types of waters from federal jurisdiction, including streams and pools that flow only as the direct result of precipitation, groundwater, small ditches, water-filled depressions created as part of construction, and waste treatment systems.

Francois calls the new rules a "mixed bag," saying that they "properly remove physically isolated ponds and puddles from federal control" but still leave the EPA "in control of 'streams' that flow as little as a few days a year, in violation of the Clean Water Act and Supreme Court precedent."

But most of the criticism has come from people who say the rules are too weak.

That includes the EPA's Scientific Advisory Board (SAB), which wrote a letter opposing the revised rule when it was first proposed. Science, the board argued, had told them that legal precedent and the Trump administration's statutory interpretation were wrong:

It was made clear that the EPA has chosen to interpret the [Clean Water Act] and subsequent case law as constraining them to limiting the definition of WOTUS to the language of the proposed rule. The SAB acts under no such constraint to give deference to shifting legal opinions in its advisory capacity and is in fact obligated by statute to communicate the best scientific consensus on this topic.

The trouble with arguments like this is that the proper interpretation of the Clean Water Act is not a scientific question.

The idea of a clear bright line distinguishing navigable waterways (or something with a "significant nexus" to a navigable waterway) is "somewhat nonsense" from a scientific point of view, Peter Van Doren of the Cato Institute said on a recent episode of Free Thoughts.

"Everything you put into some small thing eventually, through the filtration of groundwater, probably ends up eventually somewhere in a navigable water," Van Doren said. "But everyone realizes that the writers of the [Clean Water Act] probably did not want the feds to have regulatory authority over everything. So this ends up not being a scientific decision but a policy wrestling match."

Predictably, the administration's attempt to put at least some limits on the feds' regulatory authority is being treated not as a position in a policy wresting match, but as a broadside against science and clean water.

Francois argues that a lot of the commentary on the new rule is missing the damage done to ordinary Americans and their property rights by the federal governments' claim to effectively limitless regulatory authority. His group's clients "aren't factories," he says. "They're not sewer treatment plants. They're people trying to build their home, they're people trying to build modest developments, they're people trying to earn a living farming and ranching. That's what's at issue in these reforms."

The new rule will go into effect 60 days after it is published in the Federal Register.

NEXT: Trump Lawyer Alan Dershowitz Abandons His Position That Impeachment Requires a Crime

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  1. Sensible position, since the federal government’s jurisdiction over water ends at navigable rivers and interstate commerce. Unless a ditch crosses state lines, it’s not of D.C. fucking business.

    If that makes proggies mad, then fuck the proggies. Our system was NOT designed to be a centralized authoritarian state.

    1. Yay for Trump admin! It does happen from time to time…

      (Now, next, can Trump admin PLEASE protect us all from the cheap plastic flute police?)

      To find precise details on what NOT to do, to avoid the flute police, please see http://www.churchofsqrls.com/DONT_DO_THIS/ … This has been a pubic service, courtesy of the Church of SQRLS!

      1. Fuck off Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf you sad fucking blog whore.

        1. #GiveButtplugBackToButtplug

          Seriously. I miss his economic analysis.

          1. God you’re fucking boring.

            1. But at least I always use the same name.

              1. Aahhaahahahahahahahahah now you’re boring and a liar Ahahaahahahahah

                Hey are you still doing that lame fucking net worth watch that was dumb even when it was fresh?

                1. “OpenBordersLiberal-tarian
                  January.24.2020 at 2:17 pm
                  Were these regulations hurting the bottom line of Reason.com’s benefactor Charles Koch?”

                  Ahah YOU ARE AAHAAAHAAHAHAHAHAHAH

                  I’d probably have caught that if I read your boring ass posts instead of just making them vanish lololol

                  1. Which celebrity name will you use for your next sockpuppet? Lars Ulrich? Tiger Woods? Nicolas Winding Refn?

                    Is it just based on whatever movie, TV show, or sporting event you last saw?

                    1. “OpenBordersLiberal-tarian
                      January.24.2020 at 2:39 pm
                      But at least I always use the same name”

                      Me “you’re boring and repetitive”

                      You “at least I’m boring and repetitive”

                      Lololloolololllolooololo

                  2. Oh oh, Tulpa is having another episode. Next few days should be fun. Now we only need a Hinh and a Tony to complete the insanity.

                    1. Don’t forget Rev. Arthur L. Jerkwood.

                      The “L” stands for “loser’.

          2. This is the essential government law in the United States administering water contamination. Its goal is to reestablish https://acemyassignment.co.uk/nursing-assignment-help and keep up the concoction, physical, and organic purity of the country. Now Trump passes the law to remove pollution control over streams and pounds.

            1. Regulations are not laws. If it’s that important, Congressional Democrats can not up and try to pass some legislation.

              1. If you respond to the spam bots, they’re gonna start thinking they’re people. The last thing we want is a singularity AI that only wants to make everyone click links to shady websites.

            2. NOT TRUE.
              1. States control these issues not the FED. In Calif it will make no difference since our laws are stricter than the Feds.
              2. Ditches, low areas with water only when it rains and small ponds are what is potentially effected in some states.
              3. Nothing to do with allowing more pollution, it is about allowing more freedom on your own property and the Fed’ in control of everything.
              4. No more stealing the use of your land because it does not drain as the employees of the federal governments would like.

              1. Zowie. How lame do you have to be to not recognize the OP was a spambot?

        2. I actually found his analysis of turkey basters quite enlightening.

          1. No desire to censor him then?

      2. You’ve now applauded him twice in two days trumpista.

        1. I believe in being honest and fair. Unlike some people that I know!

          (I even know how to admit error, by the way, and have been known to do so from time to time).

          1. Fuck off Old Mex.

          2. No, you arent. Because your charge with anyone who disagrees with you is they are a trumpista. You’re a dishonest fuck.

            1. He also has a terrible sense of humor.

              1. That’s humor?

                1. Believe it or not, he thinks some of his ramblings are funny.

                  1. I don’t think he gets that he is universally despised. The only people that ever occasionally agree with him are other pariahs.

    2. Hasn’t the definition of “navigable waters” morphed literally into a puddle running through an empty lot? I seem to recall something about this in some prior EPA shenanigans.

      1. Navigable needs to be defined. Perhaps: able to be used for navigation by a 20 ft motorboat at least 180 days per year.

        1. They have a definition: Navigable by an ant riding in a canoe made of a piece of hay for some portion of the year (>10 seconds).

    3. Y’all can f*ck the Proggies. I’m particular about what I touch with that part.

    4. Justice Kennedy, siding with R, tweaked the language to ‘significant nexus”. O administration wrestled with this new language and came up will rules that would add certainty to the regs. something everyone is in favor of.

      Don’t complain when someone upstream dumps his trailer shit into a road side ditch and it smells up you property. Inhale deeply and tell yourself its the smell of freedom.

  2. Water, water, everywhere,
    And all the regs relaxed.
    Water, water, everywhere,
    Nor any drop was taxed.

    1. And that makes progtards apoplectic.

  3. Most media outlets reporting on the rule change went with a different fram [sic].

    I could say that this is further evidence that Trump has made every news organization lose its mind but honestly this would be the reporting no matter what Republican made the change, and possibly for most Democrat administrations, too. Rigorous investigation into environmental matters is mostly limited to soundbites from hysterics.

    1. <i.no matter what Republican made the change, and possibly for most Democrat administrations, too.

      Yes; Mmmaybe.. I’m leaning “No” on the second part.

      Example: Virginia Governor’s amazing come back!!!

      Shorter: If you’re going to do blackface, make damned sure you’re a Democrat.

      1. Well, I’m thinking specifically about environmental policies.

        1. I’m only thinking about how the press generally treats Democrats.

  4. Were these regulations hurting the bottom line of Reason.com’s benefactor Charles Koch? If so, I suppose I can give Orange Hitler this tiny bit of credit for getting rid of them.

    But you know what would help billionaires more? Abolishing all forms of “border enforcement.”

    #OpenBorders
    #ImmigrationAboveAll

  5. Imagine if Reason’s golden boy Amash got elected and tried to pull back spending. Amash would fold like origami.

    And who else do they have if not amash? There isn’t a single libertarian who would last five minutes against the progressive mobs.

    1. When AOC is old enough to run for President I expect Reason writers to unanimously endorse her.

      #LibertariansForAOC

    2. Your username link doesn’t work by the way.

      1. did they take down that Shikha article?

        1. It’s weird when I first start clicking on it it shows the title of the article but when I click “open in new tab” it opens up a page that says there’s an error.

    3. “And who else do they have if not Amash? There isn’t a single libertarian who would last five minutes against the progressive mobs.”

      Oh, you must be kidding! I remember this magazine trumpeting the Great Libertarian Hopes, Ron Paul, Mark Sanford, Jeff Flake, Gary Johnson…Justin Amash…

      Sigh.

      About the only one that hasn’t been really disappointing in practice is Rand Paul.

      1. Don’t forget the current heartthrob: Lincoln Chaffer.

        Reason and the Liberatarian party are like the ugly unpopular schoolgirl who just swoons when she gets asked to the Prom by a varsity athlete, the bench sitter that got in the game once when it was 87-26. She knows she’s just getting asked so he can get in her pants but she’s happy to oblige for the attention.

        These used up old politicians like Weld, Sanford, and Chaffee just want to use Liberatarians because it’s the only was they can get on the ballot for their own aggrandizement. But the Liberatarians are ready to put out to get a little attention of their own even though they are being used.

        The Liberatarians should go with the Pete Buttigeig strategy, someone no one has heard of, smart, natural talker, likable, except actually believes what they say. That’s a lot more likely to catch lighting in a bottle than the retread strategy.

    4. So what? No libertarian is going to get elected president.

  6. “But everyone realizes that the writers of the [Clean Water Act] probably did not want the feds to have regulatory authority over everything.”

    But everyone realizes that the writer of that sentence probably was dropped on his head as an infant.

  7. Renovasi Otak merupakan personal blog yang dikelola seorang diri oleh Muh. Rifky Winando(Nando Rifky). Pada awal tahun 2019 ia memutuskan untuk mendalami dunia blogging dan terciptalah halaman blog yang sederhana ini. Pada dasarnya, Blog Renovasi Otak membahas seputar Teknologi, Bloging, Dasar WebDesign, serta Tips dan Tutorial menarik untuk dibaca.

    1. Reason’s new proofreader.

      1. did he call you a terciptalah halaman?

        1. Shockingly, I’ve been called worse.

          1. terciptalah halaman = created pages. It’s some Indonesian idiot blithering on about “Brain Renovation.” I thought you should know.

      2. Lol.

  8. Trump 1000 vs. Lefties 0

    1. LOL

      All signs point to a massive #BlueTsunami this November.

      1. in one of those puddles.

  9. Another day, another barrage of hysterical reactions

    Is this about the regulation repeal or the staff of Reason?

  10. THE SKY IS FALLING!!!
    With this massive, illegal, and obviously impeachable set of rules, some property occupiers might think they are actual OWNERS instead of short term serfs to the federal government.

  11. How dare you!

  12. “Hysterical Reactions” is pretty much the Progressive Theme Song these days. For a little variety they occasionally go for “Scream At The Sky”.

    1. What happened to Orange Man Bad?

      1. That’s the name of the album.

    2. “Everything is so terrible and unfair!”

  13. Impeach the motherfucker!

  14. When your betters are in charge again, ponds, ditches, and your rain barrels will once again be regulated under the new order. Clingers who continue to resist improvements have the option for renewal. Educating you in friendly home away from home centers will assist your betters in showing you the right way. Coventry is always an option for those who cannot conform.

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  15. This is more great news for me. I’ve got 2 ponds on my property, and when it rains hard or snow melts, there is a little creek from the one uphill to the one down. I’ve been thinking of digging a trench there to make it permanent. Now if I do, I don’t have to worry about getting a stupid fine.

    1. It’d be best to leave that thing alone. There might be a rare mudskipper in that creek.

      1. Or a shinyrayed pocketbook, a purple bankclimber or a fuzzy pigtoe.

      2. I’m actually doing this just to breed mudskippers.

  16. I wonder if the founding fathers had any idea what was to become of this country. People often say that the electoral college was put in place to *prevent* imbeciles from taking office; one can only imagine how they could have ever overlooked something like this. Scholars may claim that Life, Liberty, and the pursuit of Happiness are the most important ideals in the Declaration of Independence (https://newyorkessays.com/essay-the-most-important-ideal-of-the-declaration-of-independance/) but all I see are a lot of people dying, being deprived of liberty, and blindly pursuing unattainable standards. It’s time we scrap these archaic documents befor the country *completely* goes to hell in a handbasket.

    1. Except you don’t seem to realize the commies started “scrapping” the documents quite a while a go and the more they “scrap” the more we get “hell in a handbasket”.

  17. Sounds like reason is deliberately downplaying the significance of this.

  18. Jesus Christ you are so full of shit with this article.

  19. “Modest Change”?
    I’m guessing that Christian Britschgi has never head to deal with a building inspector.

  20. “Modest Change”?
    I’m guessing that Christian Britschgi has never had to deal with a building inspector.

    1. Isn’t Reason’s commenting software just wonderful? They got $5 from me just to make sure I didn’t forget them.
      Welsh, you really are a POS.

  21. When is Tony going to show up here and cut his dick off in protest?

  22. Yesterday’s regulation replaces the prior Waters of the United States (WOTUS) rule issued by the Obama administration in 2015. The Obama-era rule was controversial from the get-go, with multiple Red states filing legal challenges claiming it exceeded the federal government’s authority to regulate water pollution. A slew of federal court rulings stayed the implementation of the rule in over half the states.

    Overturn Obama’s orders to the point of relegating his regulation heavy administration into the dustbin of forgotten history.

    Funny. Trump has passed legislations and orders that tend to side with the people more than not. Where Obama sought to pretty much expand the state, at least Trump is stopping that bleeding.

    That’s a good thing, no?

    1. +10000000

    2. People? Don’t you mean beings that live in the fly-over states?

  23. I hope this has nothing to do with Puddle’s Pity Party, hate to see THAT GO……….

  24. The word ‘protection’ is a smokescreen for the real goal of controlling private property.

    The EPA’s attitude is if it’s wet we can regulate it.

    1. They were trying to get to regulating anything that ever gets rained on.

      -jcr

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