To the Editor:

There is a lot of misunderstanding and, unfortunately, misrepresentation of the EPA’s recent clarification of federal authority under the Clean Water Act. The 2015 EPA wetland rule greatly expanded the definition of “waters of the US (WOTUS),” originally known as navigable waters under the Clean Water Act. Had this rule (law?) gone into effect, the regulatory power of the EPA and the Corps would have increased far beyond the limits set by Congress and affirmed by the Supreme Court. The main misunderstanding is that the 2015 rule has been in effect across the country despite the fact it has never actually been implemented.

The EPA and various environmental groups lobbied extensively for the 2015 change in the definition of WOTUS. The Government Accountability Office ruled in 2015 that the EPA broke the law with their lobbying campaign. The EPA used illegal tactics to generate public support. In 2015 and January 2016, Congress passed a joint resolution providing for congressional disapproval of the rule regarding “waters of the US” (S.J. Res 22, 114th). President Obama vetoed the resolution. Once the rules were published, dozens of states and other groups filed lawsuits across the nation to stop the proposed rule. A district court blocked it in 13 states prior to implementation and the 6th Circuit issued a nationwide stay a few weeks later. It has bounced around the court system since but has never been in effect nationwide. It would be more accurate to state that the EPA is reverting to previous standards rather than changing standards that were never applied and certainly never enforced.

Protection of the environment, property rights and economic considerations all require compromises to be made. Even the definition of wetlands, which is a subjective concept, requires compromise. Since we can neither afford to destroy necessary wetlands nor prevent the economic use of millions of acres of land, compromises must be made. The proposed 2015 rule, which evolved from the EPA and environmental groups attempting to interpret the vague “significant nexus” test of Kennedy in his concurrence in the Rapanos 2006 Supreme Court ruling, failed to take into consideration goals other than those of environmental groups.

Laws should be written by Congress, not agencies and certainly not advocacy groups. Congress and individual states can write new environmental laws. The courts can rule on the constitutionality of those laws. Environmental groups such as the NRDC, now headed by the former EPA director McCarthy, are free to lobby lawmakers. So are industry, property and civil rights groups.

The new EPA ruling is not a harbinger of environmental doom. Wetlands are still protected and the economic use of one’s property is not completely stymied. The goals of protecting the environment, ensuring property rights and increasing economic prosperity are not the exclusive domain of any political party.

 

Danny Clayton

Belhaven