By Thomas Mitchell
The usual suspects in the self-styled environmental groups predictably collapsed into palpitating conniptions this past week when the Trump administration announced its final rule rolling back the Obama-era rule that overreachingly defined the waters of the United States (WOTUS) covered by the Clean Water Act of 1972 as every stream, ditch, wetland or muddy hoof print that might ever eventually spill a few drops of water into any rivulet.
Brett Hartl, government affairs director at the Center for Biological Diversity, wailed, “This sickening gift to polluters will allow wetlands, streams and rivers across a vast stretch of America to be obliterated with pollution. People and wildlife need clean water to thrive. Destroying half of our nation’s streams and wetlands will be one of Trump’s ugliest legacies. We’ll absolutely be fighting it in court.”
Massachusetts Sen. Elizabeth Warren, a Democratic candidate for president, fired off a Twitter rant, “Government works great for giant corporations that want to dump chemicals & toxic waste into streams & wetlands. It’s just not working for families that want to be able to drink water without being poisoned. This is corruption, plain and simple.”
But Environmental Protection Agency Administrator Andrew Wheeler, while announcing the rule change at a conference of the National Association of Home Builders in Las Vegas, pointed out, “All states have their own protections for waters within their borders, and many regulate more broadly than the federal government. … Our new rule recognizes this relationship and strikes the proper balance between Washington, D.C., and the states. And it clearly details which waters are subject to federal control under the Clean Water Act and, importantly, which waters falls solely under the states’ jurisdiction.”
The new rule — prepared by the EPA and the Army Corps of Engineers — is to take effect in 60 days, though litigation challenging it is a certainty.
The Obama administration’s 2015 definition of WOTUS covered about half of the nation’s wetlands and many streams that flowed only after heavy rainfall and required farmers and developers to seek expensive and time-consuming permits before turning so much as a shovel of dirt.
The Clean Water Act made it unlawful to discharge any pollutant that could eventually reach navigable waters unless a permit was first obtained. The 2015 WOTUS definition, for example, barred a Minnesota company from mining peat on a wetland 120 miles from the Red River.
Nevada and a dozen other states in 2015 obtained an injunction from a federal judge blocking enforcement of the sweeping WOTUS rule.
Then-Nevada Attorney General Adam Laxalt said of the injunction, “This important order, at a minimum, delays implementation of an unwise, unjustifiable and burdensome rule, and protects Nevada’s landowners, farmers and developers from job losses and increased energy prices, until the final rule can be comprehensively fought in court.” The EPA decided the injunction applied only to those 13 states.
The rule change has been in the works since shortly after President Trump took office.
In a speech to the American Farm Bureau two weeks ago Trump talked about the rule change, saying, “And, today, I’m proud to announce that I am taking yet another step to protect the water rights of American farmers and ranchers. Under the previous administration, the Army Corps of Engineers proposed a new Water Supply rule that would give the federal government vast and unlimited power to restrict farmers’ access to water. That’s not a good thing. Is anybody happy with being restricted to water if you have a farm? Please stand up if you are happy about that. Because this authority rightfully belongs to thestates, not the bureaucrats in Washington, D.C.”
The nation’s waters are not being turned over to corporations for dumping chemicals and toxins. The power to regulate and protect the water is simply being returned to the states, which under the principles of federalism, is where they rightfully belong.
In fact, Trump’s executive order of February 2017 that started the rule change process is titled: “Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.”
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 http://4thst8.wordpress.com/.