were used in the past, or may be suscepti- mental concerns provide no reason to ble to use in interstate or foreign commerce, disregard the limits in the statutory including all waters which are subject to the text.” Still, the agencies failed to trim their ebb and flow of the tide; regulatory ambitions. In fact, just the oppoby Frank Dubois 2. All interstate waters including inter- site happens. state wetlands; Are you still with me? I hope so because 3. All other waters such as intrastate the best is yet to happen. lakes, rivers, streams (including intermittent Along comes Obama who claims the two streams), mudflats, sandflats, wetlands, Supreme Court opinions have caused “conhe big one here is the “waters of the sloughs, prairie potholes, wet meadows, fusion” and ordered the agencies to take united states”, or WOTUS issue. The playa lakes, or natural ponds, the use, deg- another look and make any changes that way you define WOTUS determines radation or destruction of which could were warranted. The result was an expanthe jurisdiction and authority of the Envi- affect interstate or foreign commerce…” sive 2015 WOTUS rule that put sixty percent ronmental Protection Agency (EPA) and the It appears to be a pretty clear, in fact of our bodies of water under federal control. Army Corps of Engineers (COE). exhaustive, list of what is, and therefore According to the American Farm Bureau To best understand what Biden has done, what is not, a navigable water subject to Federation the Obama rule “creates confuor in this case undone, it needs to be placed federal jurisdiction. But no, it left enough sion and risk by giving the agencies almost in historical context. So let’s take a stroll wiggle room for the two agencies to con- unlimited authority to regulate, at their through the wonderland of one section of tinue on with their expansive ways. discretion, any low spot where rainwater the Clean Water Act. Prepare yourself, However, in 2001 and 2006, the feds lost collects, including common farm ditches, because its gonna be a bumpy ride. two major Supreme Court decisions, ephemeral drainages, agricultural ponds The original federal legislation on clean SWANCC and Rapanos. In both decisions the and isolated wetlands found in and near water passed in 1948, and WOTUS was not Supreme Court ruled the EPA and the COE farms and ranches across the nation, no much of an issue until the 80s when the EPA had overstepped their regulatory authority matter how small or seemingly unconand COE began taking an expansive view by adopting an overbroad interpretation of n e c te d t h e y m ay b e to t r u e of their authority. This led Congress, in 1986, navigable waters. In Rapanos, Justice ‘navigable waters’.” to pass legislation which included a defini- Kennedy wrote that waters and wetlands The Obama rule was so extreme it would tion of WOTUS. While lengthy, the guts of must have “significant nexus” to “navigable have regulated waters that couldn’t even the definition is: waters” to fall within the fed’s jurisdiction. be seen by the naked eye. The American “1. All waters which are currently used, or Kennedy further cautioned that “environ- Farm Bureau Federation explained: “…distant regulators using “desktop tools” can conclusively establish the presence of a ‘tributary’ on private lands, even where the human eye can’t see water or any physical channel or evidence of water flow. That’s right—invisible tributaries! The agencies even claim ‘tributaries’ exist where remote sensing and other desktop tools indicate a prior existence of bed, banks, and [ordinary high-water marks], where these features are no longer he s eekIng ore arTner roPerTIes To ffer ur present on the landscape today.” IshIng Ird & Ig aMe unTIng roguIde ervIces Then along comes Trump who, in February of 2017, issues an Executive Order titled Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the Waters of the United States Rule. It instructed EPA and the Corps to begin the process of a rule-making to withdraw and replace the Obama WOTUS rule. This eventually led to Trump’s 2020 WOTUS order which brought the clarity many industry groups sough as it defined the WOTUS as: (1) the territorial seas and traditional navigable waters, (2) tributaries of such waters, and (3) certain lakes, ponds 25 years in the business providing excellent adventures throughout New Mexico and impoundments of jurisdictional waters. It also laid out specific exclusions, such as ephemeral features as well as ditches and Please call or email Bob • (505) 466-7964 • Bob@santafeguidingco.com farm ponds. Then along comes Biden (Yes, we finally get there). NEW MEXICO FEDERAL LANDS NEWS
Biden on water
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