Return authority over intrastate water to the states

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The Environmental Protection Agency announced this past week that it is moving to rescind the Obama administration’s 2015 rules that defined the “waters of the United States” (WOTUS) under the Clean Water Act of 1972 as every stream, ditch, wetland or mud puddle that might eventually after a deluge spill a few drops into any rivulet that might occasionally be navigable with an inner tube.

As the courts have noted, the Clean Water Act was intended to give the EPA and the Army Corps of Engineers and other federal agencies authority over “navigable waters” only.

President Trump signed an order in February instructing the EPA to consider repeal and replacement of Obama’s EPA water rules.

Now the EPA is beginning the process of rewriting the rules, hopefully to take into account the role and authority of the states over intrastate water resources.

“We are taking significant action to return power to the states and provide regulatory certainty to our nation’s farmers and businesses,” said EPA administrator Scott Pruitt in a press release. “This is the first step in the two-step process to redefine ‘waters of the U.S.’ and we are committed to moving through this re-evaluation to quickly provide regulatory certainty, in a way that is thoughtful, transparent and collaborative with other agencies and the public.”

As it now stands with this order and several court rulings, including one from the U.S. 6th Circuit Court of Appeals, the EPA is enforcing clean water rules that were in place prior to the 2015 attempted usurpation of power.

Pruitt would do well to lift heavily from a June 19 letter to him from the attorneys general of 20 states, including Nevada’s AG Adam Laxalt, which offers suggestions on how to include input from the states and retain state jurisdiction over intrastate waters.

Laxalt was one of 23 attorneys general who backed a lawsuit that went all the way to the Supreme Court and resulted in the court saying property owners have a right to sue in court over EPA permitting determinations under WOTUS rules. The federal agencies had circuitously contended that property owners could only go to court once decisions were final, but essentially argued that all permitting decisions are reviewable and potentially reversible and therefore never final.

The attorneys general letter notes the burden the Obama era rules were on land owners, because the discharge of any pollutant — be it mere soil, rocks or sand — required obtaining a permit that is excessively expensive and takes years to obtain.

In that Supreme Court case Chief Justice John Roberts noted that a specialized individual permit, such as the one sought by the plaintiffs, on average costs $271,596 and 788 days to complete, not counting any mitigation costs that might be required.

Further, discharging into “waters of the United States” without a permit can subject a farmer or private homeowner to fines of up to $51,570 per violation, per day.

The attorneys general noted that the Obama water rules violated the Constitution by intruding on the states’ reserved authority under the 10th Amendment and usurped Congress’s authority under the Commerce Clause. They called for an approach that would allow the states the flexibility to design state law in order to protect the water resources within their borders. “It also would provide any state for which EPA attempts to designate certain waters an opportunity to explain to EPA why its regulatory program is sufficient to protect those waters and contest EPA’s determination that those waters significantly affect navigable waters,” they wrote.

It is time to return those 10th Amendment rights to the states. — TM

Comments

  1. Toni Pollock says:

    The fact of the matter is that we need to have clean water. Small streams and wetlands are the source of drinking water for millions of Americans and should be protected. Beyond that, I believe that there are some problems with your article. The Clean Water Act mandates protection of the nation’s important waters , and protecting those waters requires protecting the wetlands and streams that flow into those waters . The Clean Water Act’s congressional record shows that congress fully understood this obvious fact and intended this law to protect the wetlands and small seasonal streams (add citation) that are currently the target of Trump’s attacks on Clean Water. These waters were protected under the CWA with clarity until 2006, the WOTUS can not legally and did not expand protections to any kinds of waters the law historically excluded. Instead the WOTUS rule provided the regulators and the regulated public with some very easy to apply bright line tests to provide regulatory clarity, consistency and efficiency with the permit process following the massive amount of confusion that followed the 2006 Rapanos 4-1-4 court rulings.

    Regarding the impact on farmers, Preamble page 8: “Congress has exempted certain discharges, and the rule does not affect any of the exemptions from CWA section 404 permitting requirements provided by CWA section 404(f), including those for normal farming, ranching, and silviculture activities. CWA section 404(f); 40 CFR 232.3; 33 CFR 323.4. This rule not only maintains current statutory exemptions, it expands regulatory exclusions from the definition of “waters of the United States” to make it clear that this rule does not add any additional permitting requirements on agriculture.

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