In his next-to-last year in office, President Barack Obama, the Environmental Protection Agency and the U.S. Army Corps of Engineers altered a regulation pertaining to the waters of the United States, also known as WOTUS. The rule expanded the definition of WOTUS to include smaller streams, ditches and even puddles that had been under the jurisdiction of states.
According to one interpretation, the Obama-era rule enhanced federal protections for wetlands and smaller waterways. It protected smaller streams from pollution that threatened public health. According to another interpretation, it was a power grab that exceeded the authority granted to the EPA and the Corps by the Clean Water Act.
Earlier this month, the administration of President Donald Trump announced plans to roll back the Obama administration rule. In other words, it will be back to 2015. It’s a good move.
The legal definition of a water of the United States can get technical and tricky. At its heart, it means any stream that is considered navigable for interstate or international commerce and tributaries of those streams. That’s where you get into the technicalities. It’s obvious the Ohio River and the Big Sandy River fit that definition, but what about the creeks that empty into the Ohio that could barely float a kayak? Are they waters of the United States and thus subject to EPA and Corps jurisdiction, or are the states better able to regulate them? What about smaller streams and wetlands miles from the larger body of water?
The implementation of the Obama-era rule has been complicated by lawsuits challenging it. The result has been that, because of court orders, the new rule is in effect in 22 states, including Ohio, but not in others, including Kentucky and West Virginia.
The worst-case scenario under the Obama-era rule happened the year before the rule took effect. Lois Alt, the owner-operator of a poultry farm in Hardy County, was cited because her farm did not have a permit to discharge pollutants into a small stream known as Mudlick Run. Boots and ventilation fans allowed small particles of dust and litter from her poultry barns to find their way into Mudlick Run, which the EPA determined was a water of the United States.
The EPA wanted to fine Alt up to $37,500 per day. Alt countersued the EPA, saying her operation was not subject to the regulations EPA cited. The EPA wanted to back away from the case, but the court would not allow it to. Alt eventually prevailed.
The WOTUS rule changing shows that too much authority has been given to regulatory agencies to decide what they will regulate and how they will regulate it. Really, that’s what Congress is for. If dust from chicken manure that is blown out of a poultry barn by a ventilation fan lands in a small creek far from a navigable waterway, that should be a state regulatory concern, if at all. That is unless Congress wants to get into the act of regulating manure dust in every creek in the nation.
What one administration accomplishes by executive order can be undone by the next, as Trump has shown with this dismantling of nearly 50 EPA rule changes written during the Obama administration.
Property owners, businesses and others need regulatory certainty for their long-range planning. Enforcing regulations that can change drastically through the views of whoever occupies the White House is not the way to provide that stability.