Vol. XIV No.2
March /April 2020
Serving Soil, Mulch, Compost & Wood Pellet Producers www.SoilandMulchProducerNews.com
NEWS
The New Definition of the Waters of the United States Protects the Waters, the Environment and Property Rights
T
he U.S. Environmental Protection Agency (EPA) and the Department of Army finalized the Navigable Waters Protection Rule to define “Waters of the United States” (WOTUS). This probably caused a large number of people to yawn; few know what the WOTUS are or the importance of this ruling. But for those who have been affected negatively for decades, this ruling is close to monumental. A bit of history is necessary to fully understand what we are seeing. • In 1969, the Cuyahoga River in Cleveland, Ohio caught fire. Oily debris, which was trapped beneath two wooden trestles, was ignited by sparks from a passing train. The fire reached heights of over five stories and lasted nearly half an hour. This was the dirtiest river in the country, but others were nearly as polluted. • Determined to resolve the issue of pollution throughout the United States, Congress passed the National Environment Policy Act (NEPA), which was signed into law on January 1, 1970. This act established the Environmental Protection Agency (EPA), which shortly put forth the Clean Water Act (1972), regulating discharges of pollutants into the waters of the United States and regulating quality standards for surface waters. It also mandated that all rivers be hygienic enough to safely allow mass amounts of swimmers and fish within the waters by 1983. Early in his administration, President Donald Trump, issued an executive order mandating that the EPA and Army Corps review the broader Obama-era interpretation of both WOTUS and the Navigable Waters Protection Rule. The EPA referred to the assessment and change of the WOTUS rule as Step 1, in the agency’s repeal of Obama-era regulations, and
By Kathleen Marquardt issued a final rule that took effect on Dec. 23, 2019. Step 2, concerned the definition of “Navigable Waters” as it relates to environmental protection, which is covered in this ruling. Both people and the environment benefit with the new WOTUS rule by removing the confusion of jurisdiction. The delineation, as to which level of government, federal or state, oversees which body of water, has finally been well defined. “Today, thanks to our new rule, farmers, ranchers, developers, manufacturers, and other landowners can finally focus on providing the food, shelter, and other commodities that Americans rely on every day, instead of spending tens of thousands of dollars on attorneys and consultants to determine whether waters on their land fall under the control of the federal government,” announced EPA Administrator Andrew Wheeler. “… instead of spending tens of thousands of dollars on attorneys and consultants… .” Strong words from an EPA administrator, but they attest to the enormous overreach of the 2015 Waters of the United States (WOTUS) rule. This new ruling both restores weakened private property rights and does away with some of the more egregious regulatory controls of the old act. That is not an exaggeration. A good example of the problem with the old act
is the story of John Pozsgai, a first-generation immigrant, who took title to city land next door to his property that was being used as an illegal dump, and told the city he would clean it up. Amongst the other detritus in this dump were over 5,000 tires, over one thousand of which were blocking a storm water drainage ditch that had been built by the township in 1936. He cleaned out the junk and covered the area with topsoil. For that action, Pozsgai was sentenced to 27 months in federal prison for placing topsoil on his property, because EPA bureaucrats decided that a portion of his lot was a marginal wetland which connected to ‘navigable waters of the United States -- in spite of the fact that the only water came from the 1936 storm drainage ditch. There are many stories like Pozsgai’s. Too many people have been fined many thousands of dollars, denied use of their property, and, yes, even imprisoned by the use and abuse of the old law. This new ruling was too long in coming for many Americans, but hopefully reason, logic and the rule of law will prevail and, if the law is again altered, it is toward even more protection of rights while safeguarding our waters. This ruling retains federal jurisdiction over “navigable waters of the United States,” as provided in the Clean Water Act. The Continued on page 3