Ditch would be under federal control under WOTUS.
President Trump this past week signed an executive order telling the Environmental Protection Agency and the Army Corps of Engineers to review the so-called waters of the United States (WOTUS) rule created under the Obama administration, which attempted to usurp dominion over every stream, ditch, wetland or muddy hoof print that might eventually spill a few drops of water into any rivulet that might occasionally be navigable with an inner tube.
“We’re going to free up our country and it’s going to be done in a very environmental and positive environmental way, I will tell you that,” Trump said. “[We will] create millions of jobs, so many jobs are delayed for so many years that it’s unfair to everybody.”
Trump ordered the federal agencies to review a 2006 opinion by the late Justice Antonin Scalia, that reduced the scope of the act by defining “waters of the United States” as only permanent bodies of water and not the occasional result of rainfall.
Nevada was one of 23 states to file suit over the WOTUS rule. The Supreme Court ruled this past summer that property owners had a right to sue in court over permitting decisions. The federal agencies had contended property owners could only go to court once decisions were final, but essentially argued that all permitting decisions are reviewable and potentially reversible and therefore never final.
But litigation is expensive and time consuming. Heading off the designation to begin with is a better solution.
Nevada Attorney General Adam Laxalt, whose office pressed the federal lawsuit on behalf of the state, said of Trump’s executive order: “The waters of the United States rule proposed by the former administration would drastically expand federal authority over state and local waters, and I am encouraged that this administration is taking action to ensure that the executive branch’s decisions are in line with congressional intent. We are pleased to see that this administration recognizes what the majority of states have already recognized — that federal rules like the waters of the United States rule must be interpreted consistently with the intent of Congress, and that specific needs of individual states must be taken into account by federal agencies like the EPA.”
In December 2010, the Hawkes Co. applied for a permit to mine peat on property in Minnesota. More than a year later the Army Corps denied the application, saying the land contained “water of the United States” because its wetlands had a “significant nexus” to the Red River of the North, located some 120 miles away.
In the opinion of the court, Chief Justice John Roberts pointed out the definition of WOTUS used by the EPA and the Corps includes “land areas occasionally or regularly saturated with water — such as ‘mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, [and] playa lakes’ — the ‘use, degradation or destruction of which could affect interstate or foreign commerce.’ The Corps has applied that definition to assert jurisdiction over ‘270-to-300 million acres of swampy lands in the United States — including half of Alaska and an area the size of California in the lower 48 States.’”
Roberts also noted that a specialized individual permit on average costs $271,596 and 788 days to complete. He said the permitting process can be “arduous, expensive, and long.” He left out futile, since the process never ends.
The Western Congressional Caucus said the EPA spurned public comment and input from the states in the rule making process, “This is nothing short of a federal seizure of state waters, to the point where very few, if any, water bodies will be left for the states to manage. Water rights, economic growth, and local conservation efforts will suffer. Instead of working with the local officials and state agencies who know their needs the best, citizens will have to depend on a disconnected federal bureaucracy for management of our most precious natural resource: our water.”
Trump is to be applauded for reining in the overreach of the EPA and Corps in grabbing powers never envisioned by Congress.
A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel, Sparks Tribune and the Lincoln County Record.
4TH ST8 
Especially noteworthy is that Trumps unilateral declaration means, legally, exactly zero. For, unlike his previous unconstitutional executive orders, this one cannot reverse the rules in place.
According to most, it is very unlikely that the rules can even be changed before orange mans first term expires.
If he lives long enough to finish it that is.
So as far as you’re concerned, a ton of arsenic that’s dumped into a river is different from a ton of arsenic that reaches the river via a small tributary. Funny, I always thought arsenic’s toxicity was the same regardless of its origin. Does this mean that Union Carbide should be allowed to dump whatever it wants into some little drainage ditch on its land?
I think what it means is that, while pollution and toxic waste knows no artificial boundary lines created on a map, state legislators who have received, ahem, “sufficient interest” from their toxic polluting constituents, “ought” to be able to lower their owns states regulations at will, without regard to worrying about how the poison is going to affect someone else.
Paraphrasing.
Arsenic exists in nature naturally.
In southern Nevada we have two well identified, elevated levels, sources of the stuff, |NEllis Dunes and the new I11 interstate.
Perhaps you need to pick a better option for dumping chemicals in those horseshoe tracks.
“Arsenic exists in nature naturally.” Whether something exists naturally has absolutely nothing to do with the danger of consuming it. You aren’t really suggesting that polluters be allowed to dump at will anything that exists in nature, are you?
How much arsenic could you stuff into a horseshoe track?
Just a few weeks ago, I read the land title documents of a soon to be home-owner and saw the mineral & water rights of the land the house was situated on were held by the Federal Government and didn’t transfer with the sale to the new owners. Most of those mineral / air space/ water rights in the LV/Henderson/NLV valley do not transfer in the sale of home ownership, long ago reserved on the deeds transferred to the builders or government. The new soon-to-be owners were ok with that. The property also bordered a local wetlands area. They were happy about that – the ability to see wildlife, the reserved Wetland Park Trail system, limiting of population density in the area & just a higher quality of life in general for them they believed – “fresh air & exercise is good for health”. They reviewed the 100 year flood-plane in the area and determined they wouldn’t need flood insurance. The soils reports looked great and solid.
Fortunately, in the Las Vegas/Henderson area, our wetlands are now protected. But what about other states, other areas where wetlands unsuitable to really build on, are first come first served to any buyer, and probably fairly inexpensive to obtain per acre? Should the government permit farming of Peat moss of Gross Acres of those wetlands for mining purposes (that take thousands of years to replace naturally and can’t be farm produced), eroding of the atmospheric air quality, and potentially the redistribution of water in the area (flooding)?
The encroachment impact of higher density populations requires us to rethink the “Fluid” components of land ownership rights across state lines that contribute to the air and water quality. Perhaps individual states are not protecting bordering owners or the Public, and it IS a question of percentage of the population affected by each zoning, mining or farming permit requested —– the affect to the Public (EPA).
Changing the topography of a large area affects others – potential flooding zone changes, soil runoff.
Removing the CO2 (peat moss/turf) natural purifier from a vast area of land also affects others beyond just bordering parcels. The peat moss ecosystem takes thousands of years to develop, and captures CO2, contributing to air quality.
If it were so easy to replace they would farm it instead of stripping it. Without more information, or anything to show the affect of the peat moss mining would not affect more than just the owners, it would appear the Army Corps made the right decision in denying the application.
“How much arsenic could you stuff into a horseshoe track?”
Playing word games again, I see. Did I say anything about arsenic in a horseshoe track? While focusing on the whimsical, you ignored the flat question, which addresses the crux of the issue. Here, let me repeat it for you: Does this mean that Union Carbide should be allowed to dump whatever it wants into some little drainage ditch on its land? Any and all of you are welcome to answer.
[…] that Supreme Court case Chief Justice John Roberts noted that a specialized individual permit, such as the one sought by the plaintiffs, on average costs […]