Trump plans to ditch Obama’s protection for small wetlands and waterways

On the campaign trail, President Trump promised to get rid of regulations, especially those designed to protect the environment. One of those regulations has to do with water. In fact very small bodies of water. It’s often referred to as the Waters of the U.S. Rule (WOTUS), or the clean water rule, and it’s the Obama administration’s attempt to define which isolated wetlands, or intermittent streams, are regulated under the Clean Water Act, passed in 1972. The Trump administration is expected to announce this week a reversal of the rule, which was challenged in court soon after it was enacted in 2015 and has since been blocked from enforcement. When Congress passed the Clean Water Act 25 years ago, it defined waters that would need some protection from pollution as “navigable.” For most of us that means big enough to float a boat. But when it comes to pollution sources, the need to provide clean water extends upstream of large river systems. “Everyone agrees it doesn’t strictly mean navigable anymore,” says Owen McDonough, with the National Association of Home Builders – one of the industry groups that opposes WOTUS. “We’re not talking about, for instance, things like the Susquehanna River, or Chesapeake Bay. But as you get farther and farther upstream, into headwaters of streams, that’s been a pretty difficult line to draw.”. McDonough says the gray area included intermittent or ephemeral streams, those that may not flow unless there’s a heavy rain, or isolated wetlands, or ponds. Those areas that are sometimes land, sometimes water. Over the years, Congress tried and failed to clarify the rule. Past administrations tried and failed as well. And the courts seemed to add to the confusion over what among these tiny waterways deserved protection from pollution discharge and run-off, and what didn’t...more

It would appear, based on this article any way, the difficulty and "confusion" in drawing the jurisdictional line began after everyone agreed navigable "doesn’t strictly mean navigable anymore.”

What an interesting concept. Would this apply to other words in other statutes? If everyone agrees a word or phrase no longer means what it says then the original intent of Congress can be changed without amending the statute? And just when did this agreement about the meaning of navigable occur?  The Constitution says that all legislative powers are vested in Congress. Is that no longer the case?

Whenever I encounter this "words no longer mean what the say" phenomenon,its always in the context of expanding the powers of government.  It seems to never occur when it comes to limiting those powers.

George Leef writes:

When Congress passed the Clean Water Act in 1972, it was exercising its power to regulate interstate commerce by prohibiting discharges into the nation’s “navigable waters.” If a body of water could be used to transport goods from one state to another, it was covered by the Act.

Like so many other statutes enacted over the last 80 years – that is, since the advent of the administrative state under FDR – the Clean Water Act (CWA) depends on bureaucratic interpretation and enforcement.

The two entities involved with the CWA are the Environmental Protection Agency and the Army Corps of Engineers. Both have tried to expand the scope of their regulatory power by issuing rules that defined “navigable waters” so broadly that they have (or at least claim to have) authority over many bodies of water that couldn’t possibly be used to transport so much as a paper clip between states.

Twice, the Supreme Court has slapped down rules that amounted to a rewriting of the law to suit the zealous regulators.

First, in Solid Waste Agency of Northern Cook County v. Army Corps of Engineers (2001), the Court ruled that the Army Corps had no authority to assert control over isolated bodies of water – in that particular instance, an abandoned sand and gravel pit.

You might think that the lesson would have sunk in, but in 2006 the Court had to deal again with another creative interpretation of the CWA in Rapanos v. United States. The EPA had asserted that it could prevent a landowner from doing anything with a wetland that was near a ditch that eventually drained into navigable water. The Court again ruled that the agency had overstepped its bounds.

And here we go again, with a new definition that would include, "...virtually any wet spot – or occasionally wet spot – in the country, including ditches, drains, seasonal puddle-like depressions, intermittent streams, ponds, impoundments, prairie potholes, and large ‘buffer areas’ of land adjacent to every waterway.” When will Congress act to resolve this situation? If they don't, we'll all continue to be the victims of this bureaucratic battle to limit our property rights and other freedoms.