By Thomas Mitchell
The Trump administration’s Environmental Protection Agency is rolling back another Obama era overreach, specifically rules that defined every stream, ditch, seasonal puddle and muddy hoof print as being covered by the restrictions of the Clean Water Act of 1972 that was intended to prohibit pollutants being dumped into navigable waters — known colloquially as the waters of the United States or WOTUS Acting EPA Administrator Andrew Wheeler announced the change this past week, saying the rule rollback means the Clean Water Act applies to traditional navigable water and their immediate tributaries.
“Property owners will be able to stand on their property and determine what is federal water without having to hire outside professionals,” Wheeler was quoted as saying.
That apparently would include Northern California farmer John Duarte who wound up paying more than $1 million in fees and fines because he plowed his 450-acre farm to plant wheat. Dirt was apparently a pollutant and the farm was nowhere near navigable water, but had a few seasonal pools.
The changes bring the enforcement of the law back into compliance with Supreme Court Justice Antonin Scalia’s interpretation in a 2006 court ruling under a prior administration, “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.’”
In another example of federal overreach, in December 2010 the Hawkes Co., which mines peat for use on golf courses among other things, applied for a permit to mine peat on a 530-acre tract of property it
owns in Minnesota. The Army Corps of Engineers told the company they would have to do numerous tests that would cost more than $100,000.
The Corps said the wetlands had a “significant nexus” to the Red River of the North, located some 120 miles away. Failure to comply carried a threat of fines amounting to $37,000 a day and criminal prosecution.
In a concurring opinion in that case, Supreme Court Justices Anthony Kennedy, Clarence Thomas and Samuel Alito, said that the EPA and Corps “ominous reach” on interpreting the Clean Water Act “continues to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation.”
Nevada Attorney General Adam Laxalt, who along with 22 other attorneys general filed an amicus brief in this case, applauded the judgment at that time, saying, “The Obama administration seems determined to move as far and as fast as possible to unilaterally change our constitutional system and our congressional laws. … Fortunately in this case, our checks and balances have protected Nevadans from truly unprecedented federal overreach.”
Now the Trump administration has reined in the EPA. At one point the House and Senate passed resolutions that would have blocked the EPA WOTUS rule, but the Senate failed to override Obama’s
“We will be sued, I’m sure,” EPA’s Wheeler told The Wall Street Journal. “But what we’ve tried to do is draft a proposal that will stand up in court.” Again.
Thomas Mitchell is a former newspaper editor who now writes conservative/libertarian columns for weekly papers in Nevada. You may email Mitchell at firstname.lastname@example.org. He blogs at