The Puddles In Your Yard Are Yours Again

Posted on Sun 01/12/2020 by


By Dr. Jay Lehr ~

In 1972, I was serving as an advisor to the United States Environmental Protection Agency (EPA), which incidentally I helped to create and convince President Nixon to sign into law in 1971. I played a role in writing a number of important laws to protect our environment. One of them was the Clean Water Act (CWA). It prohibited the discharge of pollutants into navigable waters without a permit, which would include all streams and creeks that ran into our vast network of rivers. Those of us working with our natural resources were very familiar with the unconscionable act called “mid-night dumping” where by wastes of all kinds were dumped into our streams and stream-beds out of sight of the public.

Under the CWA, the EPA shared regulatory jurisdiction over these waters with the Army Corps of Engineers, which had historically overseen them. The Environmental Protection Agency, soon overtaken by the most radical liberal environmental zealots, expanded the definition of the types of waters protected by the Clean Water Act without clear legislative support. This is often the case when legislation leaves much latitude to unelected government officials. In this case, it truly lead to Federal control of puddles on a farmers land, ditches along highways, low spots at construction sites, mines and factories. The EPA argued that after a heavy rain, waters at these locations could eventually run off into navigable water bodies.

The public uproar against it lead dozens of trade groups to sue for relief. A few court victories were achieved, but none were wide spread. President Obama responded to this opposition by amending the CWA with a proposed regulation titled Waters Of The United States, better know as WOTUS, which removed the limiting words “navigable waters” thus intending to place EPA in charge of all U.S. water.

The outraged property owners , farmers and trade groups won a nationwide stay of the amended CWA in 2015 by the Sixth Circuit Court of Appeals only to have it overturned by the Supreme Court in January of 2018.

It mattered not how far from a stream your puddle existed. Five miles, ten miles or more, that water and the land containing it was no longer in your control. Anything you wished to do on that land required approval from EPA and in most cases the hiring of consulting engineers to fill out applications to satisfy the stringent requirements initiated by EPA.

This regulation has wreaked havoc on farmers and ranchers desiring to alter the drainage on their property. In the process of suing those breaking this law, EPA has destroyed families and bankrupted businesses. I have met some of these unfortunate people, all the more unfortunate if they chose to fight this egregiously over reaching government agency.

On December 12 of 2018 the Environmental Protection Agency under the direction of Trump’s new Administrator, Andrew Wheeler, along with the Army Corps of Engineers proposed a clear, understandable, and implementable definition of “waters of the United States that clarifies Federal authority under the Clean Water Act. Unlike the Obama administrations 2015 directive, the new proposal contains a straight forward definition that precludes control over the puddle in my backyard or yours. Final wording of the new rules that will amend the Clean Water Act should be complete early in 2020.

The cost savings to farmers and ranchers and all of us will be significant while in no way endangering the quality of our nations water ways. It will also allow business development on land precluded by the previous regulation, which President Trump correctly called a “massive power grab”. His promised overturning of WOTUS and his follow through has been a significant action of his administration.

This action brought forth celebration among many, many farm, ranch, construction and assorted business groups. As was expected environmental activist groups who make their money by scaring the public with false claims, have spoken strongly against revising the rules.

President Rhea Sun of the Natural Resources Defense Council said the old rule was “well supported by science and law”. I laughed when I read that.

Response from regular folks was indicated when 400 Tennessee farmers, ranchers and small business owners came to the Wilson County Exposition Center in Lebanon Tennessee a year ago to hear Andrew Wheeler highlight the proposed new ruling. Secretary of Agriculture, Sonny Perdue who had long fought for the repeal of WOTUS, was along with Wheeler. He hailed the redefinition proposal that clarifies federal authority under the Clean Water Act as a positive achievement for American agriculture”.

Trump’s Executive Order states that it is in the national interests to ensure that the nations navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of Congress and the states under the Constitution.

It is a good year for the puddles in all of our yards.

Dr Jay Lehr contributes posts at the CFACT site. Jay Lehr is a Senior Policy Analyst with the International Climate Science Coalition, and he is the author of more than 1,000 magazine and journal articles and 36 books.

Read more excellent articles at CFACT