Editorial: Return authority over intrastate water to the states

The Environmental Protection Agency announced this past week that it is moving to rescind the Obama administration’s 2015 rules that defined the “waters of the United States” (WOTUS) under the Clean Water Act of 1972 as every stream, ditch, wetland or mud puddle that might eventually after a deluge spill a few drops into any rivulet that might occasionally be navigable with an inner tube.

As the courts have noted, the Clean Water Act was intended to give the EPA and the Army Corps of Engineers and other federal agencies authority over “navigable waters” only.

President Trump signed an order in February instructing the EPA to consider repeal and replacement of Obama’s EPA water rules.

Now the EPA is beginning the process of rewriting the rules, hopefully to take into account the role and authority of the states over intrastate water resources.

“We are taking significant action to return power to the states and provide regulatory certainty to our nation’s farmers and businesses,” said EPA administrator Scott Pruitt in a press release. “This is the first step in the two-step process to redefine ‘waters of the U.S.’ and we are committed to moving through this re-evaluation to quickly provide regulatory certainty, in a way that is thoughtful, transparent and collaborative with other agencies and the public.”

As it now stands with this order and several court rulings, including one from the U.S. 6th Circuit Court of Appeals, the EPA is enforcing clean water rules that were in place prior to the 2015 attempted usurpation of power.

Pruitt would do well to lift heavily from a June 19 letter to him from the attorneys general of 20 states, including Nevada’s AG Adam Laxalt, which offers suggestions on how to include input from the states and retain state jurisdiction over intrastate waters.

Laxalt was one of 23 attorneys general who backed a lawsuit that went all the way to the Supreme Court and resulted in the court saying property owners have a right to sue in court over EPA permitting determinations under WOTUS rules. The federal agencies had circuitously contended that 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.

The attorneys general letter notes the burden the Obama era rules were on land owners, because the discharge of any pollutant — be it mere soil, rocks or sand — required obtaining a permit that is excessively expensive and takes years to obtain.

In 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 $271,596 and 788 days to complete, not counting any mitigation costs that might be required.

Further, discharging into “waters of the United States” without a permit can subject a farmer or private homeowner to fines of up to $51,570 per violation, per day.

The attorneys general noted that the Obama water rules violated the Constitution by intruding on the states’ reserved authority under the 10th Amendment and usurped Congress’s authority under the Commerce Clause. They called for an approach that would allow the states the flexibility to design state law in order to protect the water resources within their borders. “It also would provide any state for which EPA attempts to designate certain waters an opportunity to explain to EPA why its regulatory program is sufficient to protect those waters and contest EPA’s determination that those waters significantly affect navigable waters,” they wrote.

It is time to return those 10th Amendment rights to the states.

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.

39 comments on “Editorial: Return authority over intrastate water to the states

  1. Rincon says:

    There’s the ethical argument and the legal one. Since the Constitution does not qualify the term, commerce among the several states, the federal government is allowed to regulate all aspects of interstate commerce. Intrinsic to commerce are the byproducts of said commerce, therefore, the federal government has a right to regulate these byproducts. Although there is room for disagreement, this is hardly a radical interpretation.

    A Constitutional Amendment would make the legal argument moot. It’s obvious that the federal government should take care of air and water pollution because both routinely cross state lines, often going from source into multiple other states, but fanatical Conservatives think it’s just fine for one state to dump it’s pollutants into another. Go figure.

  2. Be careful what you wish for. Placing the power back into the hands of the States has a nice resonance to it, but what if the “wrong” people are leading the State Executive Agencies and/or State Legislature??

    In the Great Lakes States, for example, both Democrats and “Republicans in Name Only,” who have led the Executive Agencies and Legislatures during the past twenty years have signed onto regional agreements that incorporate European legal concepts that are anathema to constitutionally protected private property rights. These persons also include State Attorneys General. See, e.g.: “The Europeanization of the Great Lakes States’ Wetlands Laws & Regulations”, available online at: http://canadafreepress.com/article/the-europeanization-of-the-great-lakes-states-wetlands-laws-regulations .

    Moreover, merely peeling back the Obama WOTUS rule (which will likely take until the end of the year given the resistance it will face in public comments and calls for additional public comment periods) will not get to the crux of the problem for small farmers and ranchers. That problem tracks much farther back in time.

    See: “EPA Disregard for “WOTUS” Prior Converted Cropland Exclusion Kills Ag Jobs and Contributes to National Security Risk,” available online at:

  3. The government closest to the people rules best — more often.

  4. deleted says:

    Trite and mostly untrue.

    It’s akin to suggesting that what’s good for GMs is good for the country. Local interests MIGHT in some ways benefit from local governance but most often the short sightedness that results, is detrimental to all.

    Environmental impacts always get short shrift when local are in control even though those impacts are not limited to affecting locals.

  5. Rincon says:

    One of the greatest disadvantages of local government control is a lack of voter awareness. The media spotlight shines brightest on federal doings, less so on state, and hardly at all at the county, township, and city level. I keep up better than most, but can tell you next to nothing about my county board members.

  6. Steve says:

    If Illinois is like Massachusetts, counties are very weak while town, city and state are strong.
    It would stand to reason you wouldn’t know your county officials, some counties might not even have a commision.In fact Massachusetts abolished most of the county commissions long ago, though the county lines remain.

  7. Then democracy is dead. The people are too ignorant and ill-informed to govern themselves.

  8. deleted says:


    Rational self governance in a democratic form that leads to mostly positive outcomes requires that the people voting (and for anyone seeing this please use the word republic where it makes you happy so we don’t have to go down that road) have a sufficient basis of knowledge, along with some critical thinking abilities so as to make their choices rational in a non-Ayn Rand sort of way.

    It’s never really been possible and it’s surely less possible today because the world is far more complex, and has fr more moving parts.

    I for one, welcome the coming of our artificially intelligent overlords. (Where do I put the sarchism font?)

  9. Steve says:

    Did some reading, Illinois appears to be going with County government and limiting or eliminating towns.
    New England states are like Massachusetts in that they all seem to have very weak county governments with very strong local and state government. This while some are decidedly liberal and others decidedly conservative.

    Placing more control in the county is the same as placing more control in a central structure, diluting the local voices town and city government empower.

    People like Patrick should be happy with New England, and the local control shown there because, New England is (overall) considered blue.

    Strangely, Patrick seems to want more control centralized. This means someone he doesn’t like might, one day, gain control of all that power and start doing things he really doesn’t like.
    Say, for instance, “Return authority over intrastate water to the states”

    Who woulda thought Patrick would support a power structure that would elect a Donald Trump!

  10. deleted says:

    Thomas can this bode well for a democracy? How can democracy last when 50% of the population (republicans) see higher education this way?

    “A Pew Research Center survey published Monday revealed voters have grown apart in their support of secondary education since the 2016 presidential election season, when a majority of Democratic and Republican Americans agreed the nation’s universities serve as a benefit for the U.S. Whereas 54 percent of Republicans said “colleges and universities had a positive impact on the way things were going in the country” in 2015, the majority now believe the opposite, with 58 percent saying such institutions negatively impact the state of the union.”


  11. Steve says:

    Colleges have become liberal indoctrination camps.

  12. I was going to say that but got busy with kids in the pool. Thanks, Steve.

  13. Steve says:

    Thanks for the second, Tom!

  14. deleted says:

    Well even though the survey did not delve into the reasons for the responses, even if those opinions were (ignorantly) based on republicans opinions that universities were bastions of liberal thought (although how Math, or English, or Engineering, or Hotel Science, or any host of other subjects were subject to any liberal bias beats the heck out of me) the question was really an “on balance” one, such that the appropriate response would have taken all factors into consideration (unless the respondent was so indoctrinated by far right wing “thought” that the respondent couldn’t think his way out of the paper bag of far right wing bumper sloganism) which means that even if one downside to higher education was the (erroneous and ignorant) “idear” that it was liberally biased, the respondent was suppose to weigh that against the upside (which to a far right wing lunatic would presumably mean more money for themselves) and come to a conclusion based on all those factors.

    In any event, since Thomas you said that a democracy couldn’t last where the people were to ignorant to govern themselves, this poll sort of shows why I said what I said; especially those on the right wing have become so anti education, that giving them control over anything is irrational if you desire a positive outcome.

  15. Steve says:


    Exploring his conservative viewpoints, though, is proving difficult to do on campus: There’s the econ professor who cracks jokes about Republicans during lectures, Ben says, not to mention the orientation event during which the speaker understandably talked passionately about the importance of Black Lives Matter, but glossed over the social movement’s assertion that Israel is an apartheid state that engages in genocide—a particularly thorny issue at a school where the undergraduate population is, according to Hillel, 47 percent Jewish.

    The definition of conservatism has never been more muddy—depending on who you ask, it can range from white nationalists espousing hate to moderates such as Governor Charlie Baker. At many of New England’s most prestigious colleges, political conservatism has been reduced to stereotypes, conflated with the alt-right and branded as being so wrongheaded that it’s not even worth considering, let alone hiring professors who embrace right-leaning ideas. Long known as bastions of progressive thought, and home to the likes of Noam Chomsky and the late Howard Zinn, our region’s schools have always been suspected of putting the “liberal” in liberal arts college. Until recently, though, no one had quantified just how far left higher ed here had drifted.

    Last spring, Samuel Abrams, a professor of politics at Sarah Lawrence College, in New York, decided to run the numbers. From the start, he certainly expected liberal professors to outnumber conservatives, but his data—25 years’ worth of statistics from the Higher Education Research Institute—told a far more startling tale: In the South and throughout the Great Plains, the ratio of liberal to conservative professors hovered around 3 to 1. On the liberal left coast, the ratio was 6 to 1. And then there was New England—which looked like William F. Buckley’s worst nightmare—standing at 28 to 1. “It astonished me,” says Abrams, whose research revealed that conservative professors weren’t just rare; they were being pushed to the edge of extinction.

    It’s no coincidence that the rise of political correctness on campus coincided with the sharp uptick in liberal professors, Abrams says: “It’s all part and parcel.”

    The examples go on forever, and are not limited to students upset with guest speakers. In one of the more widely cited instances of campus PC culture gone haywire, the Asian American Students Association at Brandeis put up signs meant to teach students about microaggressions against Asians, which included slogans such as “Aren’t you supposed to be good at math?” Another group of Asian-American students took offense, deemed the exhibit itself to be a microaggression, and demanded that it be removed. The student president of the group that put up the posters ultimately apologized in a campus-wide email, expressing sympathy for classmates who felt injured by the exhibit.


  16. Rincon says:

    It’s certainly possible that college professors are more liberal than the average American – perhaps it’s because they’re smarter than the average American 🙂

    My opinion stems from my college years decades ago, but I can truthfully say that the political leanings of perhaps 90% or more of my professors weren’t obvious because, you know what? It hardly ever came up. It may be hard for a Conservative theorist to believe, but the vast majority of my professors stuck to the course material.

    The real political discussions in my time at college were with other students, not the professors.

  17. Steve says:

    It’s long, Rincon.
    I know you hate that.
    Sorry about it, but, you should read the Boston Magazine article.

    It’s an eye opener, at least for those who refuse to see, like you.

  18. deleted says:


    It’s nothing but a distraction to claim that professors at American Universities self identify as either liberal or conservatives, especially if the implication that that this means their teaching is somehow colored by their self identified philosophy.

    What more, even if most professors at American Universities self identify as being liberal, when those professors are teaching subjects where that liberal philosophy is irrelevant, like math, or English, or chemistry, or physics, or biology, or any number of other subjects, asserting that the professor self identifies as a liberal is just a way for the far right wing to hide their anti intellectualism behind some red meat that their followers will seize on to justify their anti intellectualism.

    As you know, since you read “Dark Money” the far right has, for several decades now, been involved in subverting the educational institutions in this country, who are in constant need of funding, by funding them with strings attached. The story of a George Mason “University” and the corruption of that schools college of economics was instructive but there are a myriad of examples where the money seeping in from far right wing extremeists is being used to corrupt young minds otherwise eager to learn.

    But like I said, this MIGHT have been one factor, albeit ignorant, in forming the opinion expressed by 58% of republicans! but there were so many others that ought to have been considered! the only objective conclusion that may be reached! is that republicans believe that higher education is bad for this country because they harbor resentment and suspicion of educated people.

  19. Steve says:

    The article is rife with data and statistics over 25 years.

    The only “distraction” offered is the one attempted by Patrick.

    After all, it IS the idea, silence the opposition. Eh, Patrick?

  20. Rincon says:

    The irony is that Conservatives, who universally detest political correctness, have their own brand. One form, which we’ve previously discussed, is that they don’t believe in equal voting for all citizens. Those “disadvantaged people” in smaller states should get a little extra so far as Conservatives are concerned because….ummmm…apparently it’s because those city people don’t deserve an equal say. Kind of like affirmative action.

    Now, they gripe about more professors being liberal than conservative. The next logical step is to demand quotas for Conservative teaching staff, who may well feel the need to proselytize to their students.

    While it doesn’t translate perfectly into conservative vs liberal, college educated people are 25% more likely than high school graduates to vote for Democrats in Presidential elections (Economist 7/1/17 p.6). This could mean that, A) Smarter people vote along more liberal lines than those with lesser intelligence (my favorite)., B) Colleges have brainwashed their students, thus admitting that at least for younger people, brainwashing voters isn’t that difficult. This theorized brainwashing apparently lasts a lifetime since the figure from the Economist applies to all ages. or C) There’s some mysterious other factor that makes better educated people vote liberal.

    Of course, it’s also possible that college grads are more resistant to the propaganda concocted for the citizenry by moneyed interests, but that goes with the being smarter idea.

    If Conservatives want more college professors of their ilk, let more of them apply for those positions or come up with hard evidence of discrimination (which would put them into the liberal camp automatically)..

  21. Steve says:

    “Now, they gripe about more professors being liberal than conservative.”

    The study was made by a liberal college professor and he expresses concern at the disparity in his own profession.

    “If Conservatives want more college professors of their ilk”
    Continuing the disparagement your peeps taught you to use, eh Rincon?

  22. Rincon says:

    How do you know he’s a liberal college professor? Osmosis?

  23. Steve says:

    When all else fails, read the article.

  24. Rincon says:

    I gave you the opportunity to support your statement precisely because Abrams describes himself as centrist in the article, not the “liberal” that you describe. You shouldn’t make things up, Steve.

    I note that there is absolutely nothing included about Abrams’ methodology. A Ouija Board, perhaps? I’m not saying he’s wrong, but that the lack of information makes it all moot so far. For example, did he include the 70 most conservative colleges? http://blog.prepscholar.com/most-conservative-colleges Krugman’s comment about the center shifting right may also be pertinent. It is famously said that Reagan could never win a Republican nomination today because he was far too liberal.

    While I’ll grant that college professors, when averaged, probably fall on the liberal side, I suspect most accountants, construction workers, engineers, etc. are conservative on average. Conspiracy? No, just people gravitating to what they like. So if true, what do Conservatives think we should do about it?

  25. Steve says:

    “Abrams describes himself as centrist in the article”


    Centrist among a group known to be 28 to 1 liberal.

    This makes “centrist” (self described) very much liberal.

    “methodology” You are suffering from “selective reading syndrome” again, Rincon.
    “25 years’ worth of statistics from the Higher Education Research Institute”
    HERI, hardly a conservative outfit if ever there could be one in today’s education establishment.

    He is liberal and he used liberal sources!

  26. Rincon says:

    This is the problem with people who are uneducated regarding research and how it is done. “Statistics” often go along with, “damn lies”. What kind of statistics, how were they gathered and how were terms defined? These are crucial, except for those who swallow the party line every time.

    Your bull cookies about the “liberal” centrist (thanks for the laugh) can just as easily be turned around. Since he’s self described, it seems that his case would be stronger if he called himself a liberal, but he can’t. Perhaps the furthest he can stretch the truth is the centrist bit. After all, how big is the middle ground, anyway? Everyone but the most extreme can truthfully call himself a centrist.

    But that’s OK. Go ahead and whine. As Conservatives, you should all agree that nothing needs to be done about it. Freedom of choice and all that.

  27. Rincon says:

    BTW, it’s been a little quiet about Trump around here. What’s not to like, I suppose. Just for grins, here is a list of Trump’s conflicts of interest by the Sunlight Foundation (rated as least biased by Media Bias/Fact Check) https://sunlightfoundation.com/tracking-trumps-conflicts-of-interest/

    Be sure to budget some time for this one. It’s a very long list.

    Next up, more about the Russian connection.

  28. Steve says:

    Centrist is a result of the peer group.

    Speaking of whining,
    It figures you would try to ignore that reality.

    Funny, you decide to drop the “methodology” complaint.

    Oh, well. when all you got is “bull” go with it, huh.

  29. Steve says:

    Nice to see I have had an impact, at least you are trying to better source. Using a tool I showed you!

    Unfortunately, you do so with intent to change a subject you have lost!


  30. Steve says:

    “This is the problem with people who are uneducated regarding research and how it is done. “Statistics” often go along with, “damn lies”. What kind of statistics, how were they gathered and how were terms defined? These are crucial, except for those who swallow the party line every time.”

    Oh, strike the “methodology” statement I made. You still refuse to accept the statistics cited from HERI.Oh well, being uneducated is, apparently, better than being willfully ignorant.

  31. Rincon says:

    How can I accept the “statistics” when I don’t even know what they are??

    Not to worry though. I’ve got this all figured out. Abrams called himself a centrist, so you decided that he really meant liberal. Perhaps Abrams did that with all of the professors identified as centrist and called them liberal. Can’t fault him for doing the same as you, can we?

    Aren’t you the one who complained so vociferously about people putting words into your mouth? Abrams says centrist, so you claim he’s liberal. You’re in a glass house.

  32. Steve says:

    You are attacking the messenger, by denigrating liberal sources.

    I love a parade!

  33. Steve says:

    Attack this!


    Though I do not agree with some of the conclusions, the main points of this does support the other link I posted.
    You cannot expect people to not be swayed by the environment surrounding them.

    Colleges in the USA are liberal. Very liberal. To attract the best and brightest there needs to be some kind of change in the way people are attracted to employment in the higher education establishment. Because, as things stand now, it mainly attracts liberal leaning thinkers.

  34. Rincon says:

    No need to attack your LA Times article. Most of what they said was spot on. They did however, miss the best explanation: College professors are smarter than average, so they are more likely to choose their politics intelligently. 🙂

    As for focusing on attracting candidates with particular political views, it sounds an awful lot like political correctness.

  35. Steve says:

    Since you approve of the LA Times op ed, I must conclude you support the Boston Magazine article as well, since they support each other.

    I knew you would “filter read” it!

  36. Rincon says:

    The two articles are vastly different, but I’m not interested in splitting hairs with you.

  37. Steve says:

    “vastly different”

    the one you like is opinion and the one you don’t is fact based news!

    “splitting hairs”


  38. Rincon says:

    Good night, Steve

  39. Anonymous says:

    As pertaining to the original article; I wonder whether these ponds, now leaching heavy metals into streams ought to be a concern to anyone at all other than the owners of the ponds that apparently abandoned them after they sucked whatever wealth they could from the land?


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