In a huge victory for landowners, President Trump rolled back much of an Obama-era rule change that was a private property rights grab disguised as environmental protection.
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“I terminated one of the most ridiculous regulations of all: the last administration’s disastrous Waters of the United States rule. It’s gone. That was a rule that basically took your property away from you,” President Trump said to a cheering crowd at the American Farm Bureau Federation’s annual convention in January.
Obama’s rule greatly expanded the definition of what constitutes a Water of These United States, or WOTUS, and took effect in 2015. It broadened the jurisdiction of the 1972 Clean Water Act, which defined a WOTUS as “navigable waters.” In layman’s terms, this meant rivers, lakes, wetlands, and other bodies of water generally large enough to support marine travel. Obama’s rule expanded that definition to include tributaries (natural smaller water sources that feed into a river, lake, or other larger body of water), ephemeral water (temporary bodies of water, such as a rainwater puddle), and nearly every seasonal stream, irrigation ditch, farm pond, and blue eyes cryin’ in the rain.
It also included all waters that were adjacent to an officially designated WOTUS, such as a small stream that connects to a river. Even man-made ditches, such as those found alongside roadways for drainage purposes or carrying water to a farmer’s crop fields for irrigation purposes, were usually considered tributaries. If a ditch wasn’t considered a tributary, then its point source or discharge water typically was considered a WOTUS, and therefore the ditch fell under the governmental oversight due to its status of being adjacent to a WOTUS. If a farmer wanted to clean his ditch or dig a pond, he had to fill out a stack of paperwork, pay for a spendy permit, get a hacksaw to cut through miles of red tape, and then hope his kids wanted to take over the farm when he died so they could finish the job when his application to improve his private property was finally approved.
Within weeks of setting up shop in the Oval Office, Trump signed an executive order to scrap Obama’s WOTUS rule. It was mostly repealed last September, and this change will officially go into effect in February.
Opponents of repealing WOTUS claim that the move strips the majority of America’s water supply of its environmental protections and allow farmers and industrialists to dump pollutants into open water by the truckload. But Trump’s definition identifies four categories of waters that are federally regulated under the Clean Water Act: the territorial seas and traditional navigable waters; perennial and intermittent tributaries; certain lakes, ponds and impoundments; and wetlands that are adjacent to jurisdictional waters. Waters that are returned to state jurisdiction include ephemeral bodies, groundwater, most farm and roadside ditches, prior converted cropland, farm and stock watering ponds, and waste treatment systems.
Repealing most of WOTUS gives states and private landowners back the ability to control their water. But lawsuits are already in the works, with several state attorneys general and environmental groups expected to sue the Trump administration over the WOTUS rollback. They will likely use concern for public safety as a platform for this blatant power grab. It’s a flip-flop of what occurred back in 2015, when the attorneys general of 13 western states sued to block Obama’s WOTUS rule.
Water rights in the West will remain a point of heated contention for – well, probably forever. Like Mark Twain may or may not have said, “Whiskey is for drinking, water is for fighting over.”