Here We Go Again
By Dennis Sun
Living in the West, there are certain words or phrases always getting our attention. Shipping fever, taxes, water, masks, climate change and government overreach are some phrases that always make our ears perk up. We shake our heads and say, “Here we go again.”
This past week was one of those weeks where we heard or read the word ‘water’ in the ag news, or more specifically, ‘waters of the U.S.’ The Biden administration is looking to regulate more waters and permit more overreach on rural areas.
Looking back, the Obama administration came out with their Clean Water Act (CWA) jurisdictional rule and a gasp could be heard all over the West and rural areas across the rest of the nation. It could require a permit for certain mud puddles on private lands.
At this time, the current Environmental Protection Agency (EPA) Administrator Gina McCarthy stated during a Senate Appropriations Subcommittee hearing the current ag exemptions for the CWA permitting for normal farming, ranching and agriculture practices are kept intact in the proposed rule. But then, 231 U.S. representatives sent a letter to the EPA and Army Corp of Engineers asking them to back off this proposed rule to expand federal control under the CWA.
They said the proposed rule would redefine waters of the U.S. under the CWA based on a narrow opinion by Justice Anthony Kennedy in a 2006 Supreme Court decision. This opinion stated isolated water – like a stock pond or a ditch – doesn’t have to have a surface water connection to a downstream navigable water to be considered ‘water of the U.S.’
Justice Antonin Scalia wrote the plurality opinion on the case, and his opinion differed from Kennedy’s by saying waters of the U.S. include only relatively permanent, standing or continuously flowing bodies of water like streams, rivers and lakes. This was an opinion we could live with.
Now here we are, after President Trump’s administration concluded with a Navigable Waters Protection Rule, providing much needed clarity of which waters to permit.
President Biden has a few choices to make on how to do away with the Trump rule. He needs to do it in a manner that stands up from District Court to the Supreme Court. Even with the Trump rule, there are 14 cases challenging the Navigable Waters Protection Rule.
This issue is a lawyer’s dream, and now there is an added kink in the conservative rope. It is not if, but when, the Biden issue will reach the Supreme Court. In the past four years, Chief Justice John Roberts has not always voted with the conservatives on environmental issues, even though he was appointed by President George W. Bush.
In the last four years, President Trump appointed a large number of conservative judges.We certainly hope and pray they will hold back those wanting more government overreach on this country’s rural lands. This president needs to focus on getting COVID-19 under control, keeping our cities safe and getting people back to work. He needs to let ranchers ranch, farmers farm and energy workers develop.
This is the American way.