(Quin Hillyer, Liberty Headlines) The federal government will no longer regulate private landowners’ flood ponds – leading free-marketeers, property-rights advocates, conservative Congressmen and constitutional/legal “strict constructionists” to issue a veritable flood of celebratory messages.
Specifically, the Environmental Protection Agency and the U.S. Army Corps of Engineers announced a joint decision to revoke the Obama administration’s 2015 Clean Water Rule – which already was on hiatus via court order because of allegations that it was an illegal regulatory overreach. The rule had vastly expanded regulators’ ability to tell landowners how to manage intermittent “wetlands” or water that might pool on their property after heavy rains, supposedly to protect various aspects of the environment.
Federal power to issue rules over “waters of the United States” (as opposed to states’ powers, which are typically more extensive in this area) derives from the Constitution’s Interstate Commerce Clause – which had long been understood to apply only to “navigable waterways.” But the Obama administration’s 2015 rule pushed past that traditional understanding; This week’s decision, assuming it is implemented without further glitches, will restore the traditional limits on bureaucrats’ authority.
If it had been implemented, said Republican U.S. Rep. Bradley Byrne of Alabama, the Obama rule “would have had a devastating impact on Alabama farmers, foresters, and landowners. By putting a stop to this flawed rule, we can focus on policies that actually work in protecting and preserving our natural resources without unnecessarily harming hardworking Americans.”
Republican U.S. Sen. Mike Enzi of Wyoming also celebrated the end of the rule that would have “allow[ed] Washington to regulate nearly every creek and pond,” and 19 members of the Congressional Western Caucus jointly welcomed reversal of the policy that caucus chairman Rep. Paul Gosar of Arizona said “threatened the very livelihoods of farmers, ranchers, small businesses.” Louisiana’s Rep. Mike Johnson added that the Obama rule had absurdly put “mud puddles and backyard ditches under government control.”
Conservative think tanks also were delighted. At the Heartland Institute (in Illinois), environmental policy expert Isaac Orr said this week’s welcome decision means that “Farmers… [will] not need to worry about bureaucrats in Washington telling them that the low spot in their field – where water may accumulate for a week or so in the spring – is a federal water and subject to onerous regulation.” Analysts at the Heritage Foundation and other think tanks long had argued against the Obama rule as “a power grab and an attack on property rights.” The “free-market environmentalists” at the National Center for Public Policy Research said the Obama rule was “a scheme to impose federal zoning on millions of acres of private land across the country and “an epic federal power grab.”
From a purely legal standpoint, those who want the Constitution’s words to have a real, fixed meaning are breathing a sigh of relief. “In violation of the Constitution’s commerce clause, [the Obama regulators] assert authority over waters that are neither instrumentalities nor channels of interstate commerce and that do not substantially affect interstate commerce,” wrote William Perry Pendley of the Mountain States Legal Foundation in a 2014 column in the Washington Times.
Of course, liberal interest groups see things differently. Reuters reported this from Howard Learner, executive director of the Environmental Law & Policy Center, speaking in the jargon of bureaucratese: “”This foolish rollback of clean water standards rejects years of work building stakeholder input and scientific data support, and it imperils the progress for safe clean drinking water in the Midwest.”
But federal drinking water standards still apply, as do state laws protecting the environment – and the rule change does not change any rules for publicly held reservoirs or for the large, navigable rivers from which most municipal or county water supplies are drawn.
“This rule was never really about clean water,” said Zippy Duvall, president of the American Farm Bureau Foundation. “It was a federal land grab designed to put a straightjacket on farming and private businesses across this nation…. [The Obama rule had been] an illegal and dangerous mistake.”