You Guys Should Talk

When different branches of the same organization work at cross purposes, it is often said that the right hand doesn’t know what the left hand is doing. One seemingly unrelated pair of current political initiatives illustrates the point.

Several times over the past six years we have discussed the roller coaster of constantly changing legal interpretations known as “Waters of the United States” or WOTUS. It is a hot topic again this week because the EPA just announced its plan to once again revise the rule “to better protect our nation’s vital water resources that support public health, environmental protection, agricultural activity, and economic growth.” Ignoring the grammatical cul-de-sac of “protecting” the resource that “protects” the environment, I couldn’t help focusing on the last phrase in that description – protecting the resources that support “economic growth.”

Under Colorado law, it has long been recognized that water is the essential basis of all economic activity, including municipal, industrial, agricultural, and recreational uses. But water is only valuable enough to create a property right when it is “put to beneficial use.” It supports no economy when it is walled off, and put under control of Washington bureaucrats, with all human uses blocked pending permits that take years to get, if they are allowed at all. The only economy that supports is in Washington, D.C.

You will remember that the Obama-era EPA tried to extend federal control over practically all water in the U.S., labeling it as “waters of the U.S.” under the Clean Water Act. The problem was that the Clean Water Act did not declare all water to be federal, only “navigable waters” such as major rivers, harbors, ports, inter-coastal waterways, and the Great Lakes. The EPA wanted to regulate any waterways with a “significant nexus” to “waters of the U.S.” That included, as EPA proposed its rule, all land – not just water – within any 100-year floodplain, or within a quarter mile of the high-water mark of any such flood, or within three-quarters of a mile of waters already under EPA jurisdiction. It also included what the agency called “ephemeral” ponds, ditches, or streams that that are dry except after rainstorms. That had nothing to do with “navigable waters” as clearly defined in the Clean Water Act. EPA called it a new “interpretation” of the law, but it was a rewriting of the law.

Waters that are not navigable are not involved in “interstate commerce,” so they are controlled by states, not the federal government. So, more half of all the states sued the government over that new “interpretation,” and some federal courts blocked it. The Trump Administration withdrew the rule, and now the Biden EPA leadership is trying again. This time, though, the political climate is different because of a seemingly unrelated political battle – one that is consuming most of Congress’s time, and becoming a defining moment for the Administration.

Congress has been tied in knots for weeks over the proposed infrastructure bill, which will authorize somewhere between a trillion and three trillion dollars of new spending. In theory at least, the initiative would build and/or repair roads, bridges, pipelines, tunnels, and other structures that an active and mobile society requires for a prosperous economy. Trouble is, the WOTUS rule has only one clear purpose, which is to stop such construction projects, not to facilitate them. The EPA’s own description of the plan, in its announcement last week, complains that by rolling back the Obama-era “interpretation,” the Trump Administration had eliminated federal permitting requirements for 333 specific infrastructure projects. In other words, there are hundreds of infrastructure projects underway that the EPA once again wants to stop, or at least delay until it works its will through the permitting process. And it has proposed to resurrect this misguided power grab at exactly the moment we hear that at least some Republicans have reached agreement with the Democratic leadership to spend a trillion dollars on infrastructure.

Predictably, very few political leaders have connected the two issues in their minds, much less mentioned the conflicting goals in any public statements. One newspaper, the Wall Street Journal, editorialized that “President Biden wants Congress to shovel out hundreds of billions of dollars for infrastructure, which the EPA then will tie up in a permitting morass.”

In other words, the right hand has no idea what the left is doing. If there is one message that ought to be delivered to the EPA Administrator and the leadership of Congress, it is, “You guys should talk.”