An Anti-Development Water Rule – WSJ

Close by the editorial staff

The editorial office

June 11, 2021 6:06 p.m. ET


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A small group of Republicans and Democrats in the Senate have reportedly signed a $ 1 trillion infrastructure deal. Meanwhile, Biden’s Environmental Protection Agency has announced plans to revise the Trump administration’s Waters of the US (Wotus) rule, which will make infrastructure more difficult.

The EPA this week announced plans to revise the Trump-Wotus Rule “to better protect our nation’s vital water resources that support public health, the environment, agriculture and economic growth.” Translation: The EPA is preparing a private land grab that will restrict agriculture, fracking, housing and economic activity.

Recall how the Obama-era Wotus rule expanded federal jurisdiction over “US waters” under the Clean Water Act of 1972, which empowered federal agencies to regulate “navigable waterways” such as the Hudson River. The Obama EPA claimed responsibility for all waterways with a “significant connection” to “US waters”.

This included all of the country within a 100-year flood plain and 1,500 feet of high water mark or 4,000 feet of water already under his jurisdiction, as well as “ephemeral” ponds, ditches, and streams that occasionally filled with storm runoff. The rule should give federal agencies a veto against fossil fuel development on private land.

But that also meant that farmers had to get a permit to fill in trenches. Road and highway construction projects would need a state review if their storm runoff could affect waterways approximately a mile away. The Trump EPA usefully revised the rule to exclude non-navigable bodies of water, including those that fill with water after a rainfall.

Now Biden’s EPA is complaining that Trump’s regulator has over-scaled its regulatory powers, particularly in arid states like New Mexico and Arizona, and removed federal approval requirements for 333 projects. Ergo, the agency is planning another amphibious assault on private land.

To recap, President Biden wants Congress to spend hundreds of billions of dollars on infrastructure, which the EPA will then tie in a permissible quagmire – unless, of course, the projects promote climate or social justice goals. Republicans shouldn’t agree to any infrastructure deal that lacks licensing and regulatory efficiency.

Main Street (04/13/21): Pete Buttigieg’s definition of infrastructure is not what Americans mean by it. Pictures: Bloomberg / AP / Getty Images Composite: Mark Kelly

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Published in the print edition of June 12, 2021.

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