Editorial: WOTUS rule change restores federalism

The usual suspects in the self-styled environmental groups predictably collapsed into palpitating conniptions this past week when the Trump administration announced its final rule rolling back the Obama-era rule that overreachingly defined the waters of the United States (WOTUS) covered by the Clean Water Act of 1972 as every stream, ditch, wetland or muddy hoof print that might ever eventually spill a few drops of water into any rivulet.

Brett Hartl, government affairs director at the Center for Biological Diversity, wailed, “This sickening gift to polluters will allow wetlands, streams and rivers across a vast stretch of America to be obliterated with pollution. People and wildlife need clean water to thrive. Destroying half of our nation’s streams and wetlands will be one of Trump’s ugliest legacies. We’ll absolutely be fighting it in court.”

Massachusetts Sen. Elizabeth Warren, a Democratic candidate for president, fired off a Twitter rant, “Government works great for giant corporations that want to dump chemicals & toxic waste into streams & wetlands. It’s just not working for families that want to be able to drink water without being poisoned. This is corruption, plain and simple.”

But Environmental Protection Agency Administrator Andrew Wheeler, while announcing the rule change at a conference of the National Association of Home Builders in Las Vegas, pointed out, “All states have their own protections for waters within their borders, and many regulate more broadly than the federal government. … Our new rule recognizes this relationship and strikes the proper balance between Washington, D.C., and the states. And it clearly details which waters are subject to federal control under the Clean Water Act and, importantly, which waters falls solely under the states’ jurisdiction.”

The new rule — prepared by the EPA and the Army Corps of Engineers — is to take effect in 60 days, though litigation challenging it is a certainty.

The Obama administration’s 2015 definition of WOTUS covered about half of the nation’s wetlands and many streams that flowed only after heavy rainfall and required farmers and developers to seek expensive and time-consuming permits before turning so much as a shovel of dirt.

The Clean Water Act made it unlawful to discharge any pollutant that could eventually reach navigable waters unless a permit was first obtained. The 2015 WOTUS definition, for example, barred a Minnesota company from mining peat on a wetland 120 miles from the Red River.

Nevada and a dozen other states in 2015 obtained an injunction from a federal judge blocking enforcement of the sweeping WOTUS rule. Then-Nevada Attorney General Adam Laxalt said of the injunction, “This important order, at a minimum, delays implementation of an unwise, unjustifiable and burdensome rule, and protects Nevada’s landowners, farmers and developers from job losses and increased energy prices, until the final rule can be comprehensively fought in court.” The EPA decided the injunction applied only to those 13 states.

The rule change has been in the works since shortly after President Trump took office.

In a speech to the American Farm Bureau two weeks ago Trump talked about the rule change, saying, “And, today, I’m proud to announce that I am taking yet another step to protect the water rights of American farmers and ranchers. Under the previous administration, the Army Corps of Engineers proposed a new Water Supply rule that would give the federal government vast and unlimited power to restrict farmers’ access to water. That’s not a good thing. Is anybody happy with being restricted to water if you have a farm? Please stand up if you are happy about that. Because this authority rightfully belongs to the states, not the bureaucrats in Washington, D.C.”

The nation’s waters are not being turned over to corporations for dumping chemicals and toxins. The power to regulate and protect the water is simply being returned to the states, which under the principles of federalism, is where they rightfully belong.

In fact, Trump’s executive order of February 2017 that started the rule change process is titled: “Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.”

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.

Editorial: EPA reining in overreach on water rules

The Trump administration’s Environmental Protection Agency is rolling back another Obama era overreach, specifically rules that defined every stream, ditch, seasonal puddle and muddy hoof print as being covered by the restrictions of the Clean Water Act of 1972 that was intended to prohibit pollutants being dumped into navigable waters — known colloquially as the waters of the United States or WOTUS.

Acting EPA Administrator Andrew Wheeler announced the change this past week, saying the rule rollback means the Clean Water Act applies to traditional navigable water and their immediate tributaries.

“Property owners will be able to stand on their property and determine what is federal water without having to hire outside professionals,” Wheeler was quoted as saying.

That apparently would include Northern California farmer John Duarte who wound up paying more than $1 million in fees and fines because he plowed his 450-acre farm to plant wheat. Dirt was apparently a pollutant and the farm was nowhere near navigable water, but had a few seasonal pools.

The changes bring the enforcement of the law back into compliance with Supreme Court Justice Antonin Scalia’s interpretation in a 2006 court ruling under a prior administration, “In sum, on its only plausible interpretation, the phrase ‘the waters of the United States’ includes only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams[,] … oceans, rivers, [and] lakes.’ See Webster’s Second 2882. The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall. The Corps’ expansive interpretation of the ‘the waters of the United States’ is thus not ‘based on a permissible construction of the statute.’”

In another example of federal overreach, in December 2010 the Hawkes Co., which mines peat for use on golf courses among other things, applied for a permit to mine peat on a 530-acre tract of property it owns in Minnesota. The Army Corps of Engineers told the company they would have to do numerous tests that would cost more than $100,000.

The Corps said the wetlands had a “significant nexus” to the Red River of the North, located some 120 miles away. Failure to comply carried a threat of fines amounting to $37,000 a day and criminal prosecution.

In a concurring opinion in that case, Supreme Court Justices Anthony Kennedy, Clarence Thomas and Samuel Alito, said that the EPA and Corps “ominous reach” on interpreting the Clean Water Act “continues to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation.”

Nevada Attorney General Adam Laxalt, who along with 22 other attorneys general filed an amicus brief in this case, applauded the judgment at that time, saying, “The Obama administration seems determined to move as far and as fast as possible to unilaterally change our constitutional system and our congressional laws. … Fortunately in this case, our checks and balances have protected Nevadans from truly unprecedented federal overreach.”

Now the Trump administration has reined in the EPA.

At one point the House and Senate passed resolutions that would have blocked the EPA WOTUS rule, but the Senate failed to override Obama’s veto.

“We will be sued, I’m sure,” EPA’s Wheeler told The Wall Street Journal. “But what we’ve tried to do is draft a proposal that will stand up in court.”

Again.

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.

Mud puddles no longer covered by the Clean Water Act.

Newspaper column: Laxalt reflects on term as attorney general

As Adam Laxalt closes out his term as attorney general and transitions the office to his successor in January, he took the time to reflect on what his team has accomplished for Nevada.

“My vision for the office was to be more than an office that just represents state agencies and boards and commissions in areas that we thought we wanted to find ways to lead. The title of top law enforcement officer comes with the attorney general’s office but we really wanted to lead law enforcement, which is why we created the Law Enforcement Summit concept.”

One of the cases in which the office assisted law enforcement that Laxalt cited was out of Elko. In 2008 an Elko police officer stopped a California man named Ralph Torres for suspicion of underage drinking. Torres produced an ID showing he was 29, but the officer detained Torres while dispatch verified the ID and it turned out Torres had a felony warrant.

His conviction was overturned in 2015 by the Nevada Supreme Court, which said his detention violated the Fourth Amendment prohibition against unreasonable searches and seizures.

Laxalt’s office took the case to the U.S. Supreme Court and the arrest validity eventually was upheld.

Attorney General Adam Laxalt, with three children under 5, says he plans to get some sleep once he leaves office.

“That’s just one example among many of things that came out of our coordination and cooperation with rural law enforcement,” Laxalt said, adding that the office also helped cut the backlog in sex offender registry.

Laxalt’s office also filed a lawsuit challenging the Obama administration’s restrictive land use plans intended to protect sage grouse that hurt mining and ranching.

Though the Trump administration lifted many of those restrictions, Laxalt contends that had his office not fought the Obama rules in court they might have been implemented. “We made sure we slowed that train down. Fortunately, the current administration has a more cooperative approach to working with our state,” Laxalt said.

He noted that creating a federalism unit in the attorney general’s office was also important, because, “In the years prior to my taking office you really saw federal overreach. You really saw the expansive interpretation of federal powers.”

Asked to define federalism, Laxalt explained, “I think people misinterpret it a lot. Federalism is, of course, to make sure that we keep as much power at the state level as we possibly can as the Framers intended. We don’t want people 3,000 miles away trying to decide minutiae of how we should be running our state.”

One example of this was the effort by the Environmental Protection Agency and the Army Corps of Engineers to redefine the waters of the U.S. under the Clean Water Act.

“They were going to redefine that ‘navigable waters’ phrase more broadly than Congress intended or, so we argued, as anyone intended. That would have really hampered our own state and own local ability to be able to take charge of our own water,” the attorney general said, noting that a coalition of states won an injunction that slowed the implementation until the current administration could issue more rational rules.

Since 85 percent of the state of Nevada is controlled by various federal land agencies, the highest percentage of any state, Nevada is more strongly impacted by federal restrictions on land use.

“Right now we think we’re in a better situation in this state,” Laxalt said. “The current administration certainly (Interior) Secretary (Ryan) Zinke and the head of the EPA have a more federalism approach to working with states.”

He expressed a level of satisfaction with his office’s efforts to include rural Nevada counties in the decision making process and fending off federal regulations that could have been an economic death knell for rural counties.

When asked about any future plans, Laxalt said he and the 400 employees in his office are currently working to transition to the next attorney general, Democrat Aaron Ford. He said he’ll think about his future next January and February.

He joked that he is looking forward to getting some sleep. Not only has he been running the attorney general’s office, seeking unsuccessfully to be elected governor, but also raising three children under the age of 5.

Asked whether he might run for public office again in the future, Laxalt said, “You know I care deeply about this state and I certainly hope — you know it is something I’ve talked about a lot this year — that I don’t want our state to turn into California. … I really hope we hold onto our values, such as small government, individual liberties.”

We shall see.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

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.

Trump orders feds to review Obama-era water grab

President Trump today signed an executive order telling the EPA 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.

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.

Nevada Attorney General Adam Laxalt applauded the judgment, “This unanimous U.S. Supreme Court decision vindicates our position that the Obama administration has continually attempted to avoid the rule of law and judicial review of its unlawful actions. The Obama administration seems determined to move as far and as fast as possible to unilaterally change our constitutional system and our congressional laws. … Fortunately in this case, our checks and balances have protected Nevadans from truly unprecedented federal overreach.”

Trump orders review of WOTUS.

Editorial: SCOTUS curbs WOTUS, but Congress must act

The U.S. Supreme Court (SCOTUS) this past week acted to finally curb, but not eliminate, the unfettered power of the Environmental Protection Agency and the Army Corps of Engineers to control 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.

Under the agencies’ vague definition of what exactly are waters of the United States (WOTUS) under the Clean Water Act of 1972, the existence of any water on one’s own property promulgates the necessity to obtain a permit before doing anything that might “pollute” that water with anything, including dirt.

In a unanimous decision in Army Corps of Engineers v. Hawkes Co., the court said property owns have a right to sue in court over permitting determinations. 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.

In December 2010, the Hawkes Co., which mines peat for use on golf courses among other uses, applied for a permit to mine peat on a 530-acre tract of property it owns in Minnesota. The Corps of Engineers told the company they would have to do numerous tests that would cost more than $100,000.

In February 2012, the Corps determined 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. The owners appealed and got the same result, essentially a denial of permission to mine their own property.

In the opinion of the court, Chief Justice John Roberts points 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, such as the one sought by Hawkes, on average costs $271,596 and 788 days to complete, not counting any mitigation costs that might be required. He said the permitting process can be “arduous, expensive, and long.” No kidding. He left out futile.

The Corps told Hawkes after its denial of a permit that it could appeal administratively, but not judicially, or simply do the work without a permit and risk a fine of $37,000 a day and criminal prosecution.

The court said Hawkes has a right to sue in court. So, it curtailed the process but did not put a stop to the draconian obstruction of the right of personal property and burdensome expenses.

In a concurring opinion, Justice Anthony Kennedy, joined by Justices Clarence Thomas and Samuel Alito, said that the EPA and Corps “ominous reach” on interpreting the Clean Water Act “continues to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation.”

Nevada Attorney General Adam Laxalt, who along with 22 other attorneys general filed an amicus brief in this case, applauded the judgment.

“This unanimous U.S. Supreme Court decision vindicates our position that the Obama administration has continually attempted to avoid the rule of law and judicial review of its unlawful actions,” said Laxalt. “The Obama administration seems determined to move as far and as fast as possible to unilaterally change our constitutional system and our congressional laws. … Fortunately in this case, our checks and balances have protected Nevadans from truly unprecedented federal overreach.”

Congressman Cresent Hardy also lauded the court ruling, saying, “The Court’s unanimous ruling in the Hawkes case reins in an unchecked executive branch.  Property owners should not have their lands locked up by a ‘final agency action’ and be forced to go through a prohibitively expensive permitting process without the ability to appeal the decision. Thankfully, the Supreme Court agrees.”

But the reality is that this decision, while welcome, merely puts a Band-Aid on a hemorrhage. Congress must rewrite the Clean Water Act and properly define WOTUS for the rapacious federal agencies lest they grind commerce in this country to a halt.

The House and Senate passed resolutions that would have blocked the EPA water rule, but in January the Senate failed to override Obama’s veto.

A version of this editorial appears this past 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.

SCOTUS reins in WOTUS abuse … somewhat

The U.S. Supreme Court (SCOTUS) Tuesday acted to finally curb, but not eliminate, the unfettered power of the Environmental Protection Agency and the Army Corps of Engineers to control 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.

Under the agencies’ vague definition of what exactly are waters of the United States (WOTUS) under the Clean Water Act of 1972, the existence of any water on one’s own property promulgates the necessity to obtain a permit before doing anything that might “pollute” that water with anything, including dirt.

In a unanimous decision in Army Corps of Engineers v. Hawkes Co., the court said property owns have a right to sue in court over permitting determinations. 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.

Muddy hoof print (Getty Images)

In December 2010, the Hawkes Co., which mines peat for use on golf courses among other uses, applied for a permit to mine peat on a 530-acre tract of property it owns in Minnesota. The Corps of Engineers told the company they would have to do numerous tests that would cost more than $100,000.

In February 2012, the Corps determined 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. The owners appealed and got the same result, essentially a denial of permission to mine their own property.

In the opinion of the court, Chief Justice John Roberts points out the definition of WOTUS used by the EPA and the Corps “include 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, such as the one sought by Hawkes, on average costs $271,596 and 788 days to complete, not counting any mitigation costs that might be required. He said the permitting process can be “arduous, expensive, and long.” No kidding. He left out futile.

The Corps told Hawkes after its denial of a permit that it could appeal administratively, but not judicially, or simply do the work without a permit and risk a fine of $37,000 a day and criminal prosecution.

The court said Hawkes has a right to sue in court. So, it curtailed the process but did not put a stop to the draconian obstruction of the right of personal property.

In a concurring opinion, Justice Anthony Kennedy, joined by Justices Clarence Thomas and Samuel Alito, said that the EPA and Corps “ominous reach” on interpreting the Clean Water Act “continues to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation.”

Nevada Attorney General Adam Paul Laxalt, who along with 22 other attorneys general filed an amicus brief in this case, applauded judgment.

“This unanimous U.S. Supreme Court decision vindicates our position that the Obama Administration has continually attempted to avoid the rule of law and judicial review of its unlawful actions,” said Laxalt. “The Obama Administration seems determined to move as far and as fast as possible to unilaterally change our constitutional system and our congressional laws. … Fortunately in this case, our checks and balances have protected Nevadans from truly unprecedented federal overreach.”

But the reality is that this decision, while welcome, merely puts a Band-Aid on a hemorrhage. Congress must rewrite the Clean Water Act and properly define WOTUS for the rapacious federal agencies lest they grind commerce in this country to a halt.

The House passed legislation nearly a year ago that would have blocked the EPA water rule, but in January the Senate failed to override Obama’s veto.