In 2013, Andy Johnson and his wife drained most of their savings to dam the creek on their land in southwestern Wyoming, creating a small pond where their livestock could drink and their four daughters could fish. That idyllic little pond has since become an unlikely national flashpoint.
Though Johnson meticulously worked with the state of Wyoming to gather proper permits, the Environmental Protection Agency claimed he also needed a sign-off from the U.S. Army Corps of Engineers. Thus, a frowning federal bureaucracy threatened to charge the Johnson family a whopping $37,500 each day until they had restored the creek to Washington's satisfaction.
After years of stressful litigation, Johnson finally settled his case last summer. Now, the Trump administration is seeking to help other small property owners, ranchers and farmers avoid similar turmoil by rescinding the Waters of the United States rule, an Obama-era regulation that gave the federal government unprecedented authority over small bodies of water on private land.
The trouble began in 2014, when the EPA announced it would "clarify" the 1972 Clean Water Act, issuing the water rule, which was finalized in 2015. Practically, this sweeping regulation meant that the federal government suddenly said it had the authority to control over millions of acres of private land – a rather convenient development for an activist agency. Under this radical reinterpretation, the EPA had the final say on the fate of any body of water it deemed had a "significant nexus" to "navigable waters."
Johnson's case showed the EPA could interpret these terms with the same creativity a film buff applies to the game Six Degrees of Kevin Bacon.
The creek on the Johnson family's Wyoming land ran just half a foot wide and two feet deep – but that small trickle could be traced back to the Black Forks River, and through that waterway, back to the Green River and Colorado River. "Because of Six Mile Creek's relationship to the larger waterways," the Casper Star-Tribune reported, "the EPA claims the creek is subject to the Clean Water Act."
Ranchers, farmers, homebuilders, golf courses, manufacturers and small-time property owners were all understandably aghast. If Johnson's tiny man-made pond could incur in millions of dollars of fines, their own small watering holes, rivulets, potholes, barrow pits, creeks and ditches may also be vulnerable to draconian federal oversight and crushing penalties.
"It's not about a pond. It's about national law. … It's not about me. It's about everybody across America," Johnson rightly told local media.
The EPA's own (and often underestimated) figures hint at how cumbersome the water rule's regulatory burden would be: Overall, property owners could expect to pay up to $465 million a year in additional permitting costs alone.
Meanwhile, one of the U.S. Chamber of Commerce's top environmental experts said the rule "would put the agency effectively in charge of zoning the entire country." The National Federation of Independent Businesses estimated that the average permit would cost $270,000 and take up to two years to gain approval – or outright denial.
Though the EPA sought to zealously and expansively interpret the Clean Water Act, it played fast and loose with other aspects of federal law. In late 2015, the Government Accountability Office found that the agency had engaged in a "covert propaganda" campaign. A sophisticated agency-led social-media campaign was specifically geared toward winning public support for the water rule, the watchdog agency found – a clear violation of federal prohibitions on taxpayer-funded lobbying. Eventually, 31 states filed suit against the federal government, claiming the wayer rule was an unconstitutional exercise of federal authority. The legal challenge was led by Scott Pruitt, then Oklahoma's attorney general.
President Donald Trump's election has meant a major reevaluation of Obama's environmental policies, which had largely been jammed through as executive orders rather than subjected to the careful deliberation of Congress. The water rule, in particular, was "a horrible, horrible rule" that constituted "a massive power grab," Trump said in February, mentioning Johnson's case specifically. He directed the EPA to reassess the regulation. Responding to the president's directive, Pruitt – now head of the EPA – announced last week that the agency would propose a new rule to rescind the water rule.
Liberal alarmists are wringing their hands over the purported threat to clean water. But the Trump administration acknowledges that state governments and local landowners suffer most when water is polluted or handled irresponsibly; thus, it entrusts oversight powers those with a vested interest in keeping water clean.
That's far better than a top-down policy based on the assumption that all waterways should eventually lead to Washington.