If the rule is upheld as written, it is about more than just EPA having jurisdiction over every drop of water on your land. It is about the continued erosion of private property rights, and it is about the death of state sovereignty and the supremacy of the federal government over all things.
EPA has crossed the line in pushing WOTUS.
Every serious agricultural group has been putting a lot of effort into stopping or reforming the final Waters of the U.S. (WOTUS) rule issued by EPA. When a federal district judge in North Dakota issued a preliminary injunction last Friday, agriculture thought it had won a battle in the larger war.
And we did, sort of. It is curious that EPA says the injunction only pertains to the 13 states included in that particular suit and that the rule will go into effect elsewhere. Typically, when a preliminary injunction is issued on a regulation, an agency stops implementation everywhere until the injunction is resolved. More than 30 states have already filed court challenges, so it is not an isolated case, or only of concern to the 13 states involved in the litigation before the North Dakota federal district court that issued the injunction.
There has been a lot of concern not only about the rule itself, but also in the process leading up to its implementation. That is not a surprise to many who have dealt with EPA in the past, as it is an agency that seemingly has no desire for input. The 400 meetings it conducted after issuing the proposed rule had nothing to do with gathering input, but rather to explain why EPA was going to do what it had already decided to do.
More than 1 million comments were submitted with more than 60% being what they classify as “unique opposed” to the rule. Amazingly, 32 individual states opposed the rule, wanting it either withdrawn or seriously modified. Yet, EPA not only went forward, it essentially made a mockery of the entire rulemaking process by running a public relations campaign on behalf of the rule. What’s more, not only did the agency not address the concerns raised by those affected by the rule, it made it more onerous and intrusive. EPA actually expanded its jurisdiction in the final rule.
There isn’t time to go into all of the intricacies and ambiguous terms contained in the rule, but here are a few highlights:
The definition of tributary was expanded to a subjective definition where if the government thinks they can see a streambed, bank or ordinary high water mark, it is a tributary. The rule even says the Army Corps of Engineers can use sensing technology to determine tributaries, even though it is understood that this technology will find channels everywhere, including any erosion feature.
The final rule is a difficult and long read. It refers to things like declared “regional water treasures,” 100 year floodplains and any water within 4,000 feet of navigable water or a tributary. Remember that under the definition, tributaries can be found anywhere, including most of the arid West. This means EPA will take control of almost all wetlands and ponds under liberal interpretations of the rule.
The “nexus” part of the rule argues that large aquifers like the Ogallala recharge rivers and thus now potentially will also be regulated. By broad definition, it could be argued that all of Florida and a good part of the Southeast would be under EPA’s jurisdiction.
EPA continually said, among other things, that they weren’t interested in irrigation ditches and the like, and wouldn’t use erosion features as tributaries. But none of those clarifications were included in the final rule. In fact, after admitting the first offering was flawed, inconsistent and ambiguous, their only solution was to make the expansion of their authority essentially without limits. It doesn’t sound possible, but if the government can prove the water is used by an insect, is in a land feature that holds water or infiltrates groundwater, it could come under EPA jurisdiction.
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