Gary Baise Commentaries
New WOTUS rule threatens property ownership
It took almost four years for the federal bureaucracy to get through the Trump rule and only a few months to undo it.
The Biden Administration has issued a new proposal regarding Waters of the United States. In my opinion, it is about taking your property rather than taking care of water quality.
Most of the agricultural press has talked about the uncertainty created by the Biden administration’s proposal. One writer from the American Action Forum describes the new Biden administration proposal for WOTUS as follows: “…[WOTUS] can best be described as having the coverage of the Obama Administration’s 2015 rule with less certainty over which waters are covered.”
It took almost four years for the federal bureaucracy to get through the Trump rule and only a few months to undo it. The U.S. Army Corps of Engineers estimates the new Biden proposal will cost $276 million more on an annual basis. This cost will be borne by you through permitting and regulation.
As you may recall, President Trump, in his second month in office, issued an Executive Order which told the Environmental Protection Agency and the Corps to review the Obama 2015 WOTUS rule and revise it. He wanted the 2015 rule to reflect the view of four Justices led by Justice Scalia in the Rapanos case.
You may remember President Trump wanted WOTUS to cover waters which were relatively permanent. These waters would be standing and continuously flowing, and these waters would have a continuous surface connection to a water of the United States.
The Trump administration repealed the Obama Administration’s WOTUS Rule. The Biden Administration issued a sweeping Executive Order on its first day in office which said to review President Trump’s environmental rules. WOTUS was one of those rules.
President Biden’s Administration also proclaimed that it would go back to the 1986 WOTUS rule and incorporated Justice Kennedy’s definition of “significant nexus”. President Biden wants to protect all of the traditional navigable waters, but he also wants to protect those waters that might have a significant nexus and other waters.
Let your voice be heard
The new Biden proposal has been issued, but is a proposed rule. It numbers 290 pages. What is important for the readers of this blog is that there will be virtual hearings conducted by EPA on Wednesday, Jan. 12, Thursday, Jan. 13, and Tuesday, Jan. 18, 2022. You should check with your local farm organization to determine where you can go and submit comments. The time is set and there is a telephone number you can call for comments and attendance. Not that your comments will be worth very much, but you should attend and make your views known anyway.
The difference between the Trump Rule and the Biden Administration proposal is simply that Waters of the United States, or WOTUS, will impact a lot more water on your property. In addition to traditional navigable waters the new proposed Biden rule discusses not only the “significant nexus standards” and “other waters.” Also, the Biden proposed rule for WOTUS will be allegedly based on the best available science.
Many of you may recall a blog I did on the “Connectivity Report” which basically concluded all water runs downhill and is therefore all connected and should be regulated. This was not the purpose of the Clean Water Act when it was passed in 1972. The Biden Administration states “…it is the policy of Congress to recognize, reserve, and protect the primary responsibilities and the rights of the States to prevent, reduce, and eliminate pollution, to plan the development and use…of land and water resources.” The Biden Administration, using the Commerce Clause from the United States Constitution, is basically saying all waters are significant and you will have to have a permit before anything can go into such waters.
I urge all of you to participate in the comment period regarding this proposed rule. There are several background documents behind this proposal which I shall also review, but before you plan and implement any work around any water such as a pond, check with your lawyer to determine whether you may do so.