Letter To The Editor
By Stephen Strnisha
I appreciate this opportunity to provide an alternative view from the one presented in the February 10th Topsail Times article “Chairman Rouzer & Graves introduce Legislation to Reverse Biden WOTUS Rule.” As readers learned in that article WOTUS is an acronym for Waters of the United States which is a term that has been part of the law protecting our environment since the Clean Water Act (CWA) passed over 50 years ago. Since enactment of the CWA this important definition has evolved through regulation and Court ruling. It concerns which waters are subject to EPA jurisdiction under their authority to enforce the CWA.
In terms of larger bodies of water and the navigable rivers and streams that feed into them the EPA’s jurisdiction is pretty clear and has never been in dispute. The issue gets trickier when we consider smaller streams and brooks and especially when considering the thousands of wetlands, which often change over time. The key consideration in regulations put forward by the EPA since CWA’s enactment and what has been the key point of contention in cases that have gone all the way to the Supreme Court is the issue of “nexus” between wetlands and those navigable waterways. We know in this part of North Carolina all too well that water travels and wetlands located upstream if not protected can have a dangerous effect on drinking water and the natural ecosystem of our entire region.
The most objective assessment of the new rules put forward by the Biden administration is that they attempt to strike a balance between rules put forward on this subject by the Obama administration and the Trump administration, both of which ultimately had provisions struck down by the Courts. The new rule is best summarized as follows by Carolyn Berndt, writing for the National League of Cities: “With this new rule, the regulations revert back to those in place “pre-2015” meaning those in place in 1986 with key changes to align with the 2001 and 2006 U.S. Supreme Court rulings.” As a history reminder it is probably important to note that we were in the middle of the two-term Reagan administration in 1986. So, this new regulation can hardly be described as over-reaching.
The points made by the Resolution championed by Congressmen Rouzer and Graves suggest that the limits of Federal oversight under the new regulation are unbounded. Indeed, the opposite is the case, since the new regulation clearly spells out a number of exclusions from WOTUS, including normal agricultural activities such as plowing, seeding, building and maintaining dikes, irrigation ditches and farm stock ponds. The significance of the Biden rule is that it clearly moves away from the regulatory actions of the Trump administration which eliminated nearly 50% of wetlands from any Federal protection. In the case of the Cape Fear watershed alone, almost 530,000 acres of wetlands lost protection under the Trump administration ruling until it was withdrawn under Court order. The Trump rule was way beyond anything put forward by prior administrations including the Republican administrations of Reagan, George H. and George W. Bush. (For the record, Congressman Rouzer did not object to the regulations proposed by the Trump administration.)
Unfortunately, the Congressional resolution sponsored by Congressmen Rouzer and Graves and supported by 152 other Republican members, is simply a partisan gesture with little chance of passing in the closely divided House of Representatives. More disappointing is that the Resolution adds little to a dialogue that should occur among all lawmakers as to how we best balance the rights of property owners with the larger community’s right to clean water and the protection of the natural environment to which we have all been entrusted.