Sunday, January 02, 2022

DuBois column: Biden on Water


Biden on water

The big one here is the “waters of the united states”, or WOTUS issue. The way you define WOTUS determines the jurisdiction and authority of the Environmental Protection Agency (EPA) and the Army Corps of Engineers (COE).

To best understand what Biden has done, or in this case undone, it needs to be placed in historical context. So let’s take a stroll through the wonderland of one section of the Clean Water Act. Prepare yourself, because its gonna be a bumpy ride.

The original federal legislation on clean water passed in 1948, and WOTUS was not much of an issue until the 80s when the EPA and COE began taking an expansive view of their authority. This led Congress, in 1986, to pass legislation which included a definition of WOTUS. While lengthy, the guts of the definition is:

1. All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
2. All interstate waters including interstate wetlands;
3. All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce…”

It appears to be a pretty clear, in fact exhaustive, list of what is, and therefore what is not, a navigable water subject to federal jurisdiction. But no, it left enough wiggle room for the two agencies to continue on with their expansive ways.

However, in 2001 and 2006, the feds lost two major Supreme Court decisions, SWANCC and Rapanos. In both decisions the Supreme Court ruled the EPA and the COE had overstepped their regulatory authority by adopting an overbroad interpretation of navigable waters. In Rapanos, Jusyice Kennedy wrote that waters and wetlands must have "significant nexus" to "navigable waters" to fall within the fed’s jurisdiction. Kennedy further cautioned that "environmental concerns provide no reason to disregard the limits in the statutory text." Still, the agencies failed to trim their regulatory ambitions. In fact, just the opposite happens.

Are you still with me? I hope so because the best is yet to happen.

Along comes Obama who claims the two Supreme Court opinions have caused “confusion” and ordered the agencies to take another look and make any changes that were warranted. The result was an expansive 2015 WOTUS rule that put sixty percent of our bodies of water under federal control. According to the American Farm Bureau Federation the Obama rule “creates confusion and risk by giving the agencies almost unlimited authority to regulate, at their discretion, any low spot where rainwater collects, including common farm ditches, ephemeral drainages, agricultural ponds and isolated wetlands found in and near farms and ranches across the nation, no matter how small or seemingly unconnected they may be to true ‘navigable waters’.”

The Obama rule was so extreme it would have regulated waters that couldn’t even be seen by the naked eye. The American Farm Bureau Federation explained: 

“…distant regulators using “desktop tools” can conclusively establish the presence of a ‘tributary’ on private lands, even where the human eye can’t see water or any physical channel or evidence of water flow.
That’s right—invisible tributaries!
The agencies even claim ‘tributaries’ exist where remote sensing and other desktop tools indicate a prior existence of bed, banks, and [ordinary high-water marks], where these features are no longer present on the landscape today.”

Then along comes Trump who, in February of 2017, issues an Executive Order titled Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the Waters of the United States Rule. It instructed EPA and the Corps to begin the process of a rule-making to withdraw and replace the Obama WOTUS rule. This eventually led to Trump’s 2020 WOTUS order which brought the clarity many industry groups sough as it defined the WOTUS as: (1) the territorial seas and traditional navigable waters, (2) tributaries of such waters, and (3) certain lakes, ponds and impoundments of jurisdictional waters. It also laid out specific exclusions, such as ephemeral features as well as ditches and farm ponds.

Then along comes Biden (Yes, we finally get there).

What does Biden do on his very first day in office? He issued a sweeping Executive Order requiring the review of all Trump environmental orders, including the one on WOTUS. Amazingly, the agencies reported back that the Trump rule was deficient in protecting the nation’s waters and a draft new rule has been issued with the same expansive coverage as the Obama rule while avoiding some of its legal frailties. They hope to accomplish this by making determinations on a case-by-case basis rather than using categorical exclusions. One analysis of this approach says it will have two impacts.  The first is increased uncertainty for landowners, likely resulting in decreased land values because of the prospect that land tracts may be undevelopable at worst, or expensive to develop at best. The second is that more case-by-case determinations will increase the time and expense it takes for landowners to get a decision on whether their land is covered by the act.

Okay DuBois, you’ve walked us through this quagmire, now tell us what conclusions you’ve reached.

First, look at the power flow. Under the Trump rule, power flows to the individual and state and local governments and away from the feds. The Biden proposal does just the opposite, with power flowing away from the individual and residing with the feds. I think you will see this in the final WOTUS rule, and many other Biden environmental policies.

This should also serve as a counter to those who want to nationalize all natural resource production. They argue that nationalizing means all our precious resources will be managed on a scientific basis. Do you see anything scientific about the process I’ve described? They also claim that all resource policy will be made by trained professionals and based on objective criteria. Look again at what I have described. It looks more like a ping pong battle between two inept political parties.

Finally, see how bad the feds want this authority. They have ignored or skirted around two Supreme Court decisions and at least one federal statute to retain this authority. We must have water to survive and they want to control that water. Control the water and they control the land use and they control us.

Until next time, be a nuisance to the devil and don’t forget to check that cinch.

Frank DuBois was the NM Secretary of Agriculture from 1988 to 2003, is the author of a blog: The Westerner ( and is the founder of The DuBois Rodeo Scholarship and The DuBois Western Heritage Foundation

 This column originally appeared in the January editions of both the New Mexico Stockman and the Livestock Market Digest.


Bill Medlin said...

The best explanation of the WOTUS rules I I have read anywhere

Floyd said...

Well said
For those who haven't watched the fed agencies in action, consider that a lot of the dust was thrown up by EPA, Corps of Engineers, US Fish and Wildlife Service etc. who were each scrambling to be the agency in charge of Clean Water Act regulations and the cash that would bring to their budgets -- from what they said and wrote, clean water never seemed to be the goal. Follow the money applies in this inter-agency fussing.