One more piece of the Obama legacy is about to be chipped away; this time it is the highly controversial Clean Water Rule written in 2015. The White House Office of Management and Budget has received the EPA’s final report on how to define Waters of the United States (WOTUS), and now just faces final approval before being rolled out for public comment.
EPA head, Scott Pruitt
The initial law has been considered divisive at best, and tyrannical at worst. The 2015 definition of U.S. waterways implied that ponds, small rivers, streams, and tributaries were considered insufficiently protected and therefore installed major federal oversight over vast tracts of land.
Rewriting the Rule Book
In early 2017, President Trump asked the EPA to rewrite the definition of WOTUS to more accurately reflect what the late Justice Antonin Scalia defined them as in Rapanos v. U.S., 2006: to include only relatively permanent, standing or continuously flowing bodies of water. Scalia was particularly scathing of the former definitions:
On this view, the federally regulated “waters of the United States” include storm drains, roadside ditches, ripples of sand in the desert that may contain water once a year, and lands that are covered by floodwaters once every 100 years. Because they include the land containing storm sewers and desert washes, the statutory “waters of the United States” engulf entire cities and immense arid wastelands. In fact, the entire land area of the United States lies in some drainage basin, and an endless network of visible channels furrows the entire surface, containing water ephemerally wherever the rain falls. Any plot of land containing such a channel may potentially be regulated as a “water of the United States.”
Hurting Real People
Justice Antonin Scalia
What the 2015 legislation meant, in reality, was that if a farmer wanted to do something with the land he owned, it would, according to Scalia, on average, take over 300 days and cost more than a quarter of a million dollars for an individual permit to be approved. Why? Because the land invariably fell under federal jurisdiction.
In the case Rapanos v. U.S. the nearest actual body of water was over 10 miles away from John Rapanos’ land, but to use his own land in the manner he wished was a crime. He faced up to 63 months in prison and hundreds of thousands of dollars in fines and costs.
Sanity?
Scott Pruitt, head of the EPA, expounded on what this new definition of WOTUS would actually achieve:
“Today, we are taking an important step toward issuing a new WOTUS definition and answering President Trump’s call to ensure that our waters are kept free from pollution, while promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the federal government and the states under the statutory framework of the Clean Water Act.”
Whether Pruitt will be successful in carrying out much-needed redefinition remains to be seen. Yet, the very act of bringing notice to tyrannical legislation that gives the federal government control over what an individual can do with his own land is a winning situation. Scalia was right, but perhaps he didn’t go far enough.
As the saying goes, an Englishman’s home is his castle, but until today, the King owned the moat.
