Herald-Whig View

Waters of the U.S. rewrite conforms to rule of law, states' rights

Posted: Oct. 1, 2017 12:01 am Updated: Oct. 3, 2017 10:15 am

MANY people might have assumed that President Donald Trump's executive order requiring a review of the Waters of the United States rule in February was the end of a frightening power grab by federal agencies.

However, issues of this magnitude are not that simple, and the wheels of the U.S. government that customarily move exceedingly slow are still rolling toward a final conclusion.

Last week, the attorney general in Missouri and his peers in 24 other states weighed in on a total rewrite of the regulation that will rely on established case law, rather than a rewrite by bureaucrats.

The controversial rule, known by the acronym WOTUS, got rolling in 2014. Under former President Barack Obama, the Environmental Protection Agency and the U.S. Army Corps of Engineers began writing new regulations that would have given them control over water falling on, flowing through or pooling anywhere in the United States.

The EPA director at that time said new regulations were needed to clarify what "navigable waters" meant in the Clean Water Act of 1972. If indeed anyone didn't understand the term, it was the EPA, which had been overruled by the U.S. Supreme Court in 2001 and again in 2006 when the agency tried to expand its jurisdiction.

Members of Congress got involved and voted in November 2015 to overturn the regulatory overreach. President Obama vetoed that resolution, basically allowing government agencies to rewrite federal law.

Notably, farmers and agricultural groups were among the first to object, but they were not the only ones. Developers, golf course operators, homebuilders, highway contractors, cities and groups such as the U.S. Small Business Administration joined the fight. Farm Bureaus in Illinois and Missouri, the Great River Economic Development Foundation, the Pike County Board and Pike County Economic Development Corp. were among the many opponents of the rule in Western-Central Illinois and Northeast Missouri.

President Trump's executive order put the rules on hold until the EPA and Corps of Engineers complete new rounds of public hearings and reviews. His order bolstered injunctions that had already been ordered by several courts.

In the intervening months, the EPA and Corps of Engineers released a new definition of their jurisdiction over water and the land upon which it flows. That proposed rule was endorsed by the 25 state attorney generals. In essence, the new rules recognized settled case law and adhere to the Clean Water Act's limits on federal oversight.

In addition, state authority to protect waters within their borders is upheld.

"Waters that fall outside the scope of the (Clean Water Act) remain subject to regulation through local laws and regulation," the attorney generals note in their letter.

The 10th Amendment states that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

In this case, the states will have the power to combat water pollution or other threats that fall outside the federal government's purview. Courts, of course, will maintain authority to render judgments concerning existing law.

Clearly, that's the way our government was intended to work.

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