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Because They Said So – Thoughts on WOTUS

As a parent of a now-grown daughter, I’m pretty sure I uttered that nonsensical phrase more often than I care to admit. When logic no longer prevails, and backed into a corner, it seemed that the best defense I had was that end-of-conversation “Because I said so.” Ah yes, as irrational and ill-informed as it is, it seems more and more environmental regulatory decisions are being made on that basis.

Witness one of the latest US EPA power grabs — the legislation commonly known in my circles as the Waters of the US or “WOTUS” proposal was published in April. According to the US EPA, the proposed regulations “reduce confusion about Clean Water Act protection by determining when the Clean Water Act protected streams and wetlands became confusing and complex following Supreme Court decisions in 2001 and 2006.”

Oh really? At last check, the regulatory docket for this proposal was an enormous electronic database filled with comments blasting the “clarity of the proposal.” Lest one think that it is only business interests that have heartburn over the regulation, environmental advocacy groups, law firms, trade associations, state and local governments , consultants, scientists; just about anyone who is aware and uses water, thinks otherwise.

The origin for the proposed regulation results from what US EPA believed was too many ambiguities in the existing regulations that pertain to water – its use, and economic value. Unfortunately, the clarity sought will not be achieved through the regulation proposed. Such litigation-guaranteed phrases such as “significant” and other qualitative definitions of WOTUS will leave the nation and its citizens wide-open to a brand new collection of law suits. When’s the last time anyone agreed on what was “significant?” It’s surprising in this day and age that the authors of this proposal have no better understanding of the US legal system and the abuses that arise from such language.

One regulation commenter noted that virtually any water in the Mississippi River Drainage basin would be a Water of the US; after all, the water is “connected” right? In fact, anything other than a privately-owned, isolated and engineered recreational water body – a swimming pool in your backyard – is likely to be a WOTUS by the time the courts are finished litigating this regulation.

The process posing as a proper regulatory procedure for this proposal is shameful and expensive. It’s also wrong. Which brings me back to my original statement: if the US EPA wants to treat us all like school children they could have saved the taxpayer a lot of time and money by merely stating that a Water of the US is whatever they believe it to be.

Why? Because they said so, that’s why.

About the Author
Gerald L. Kirkpatrick, P.G. is a Principal Geoscientist and the Managing Partner of Environmental Standards, Inc.  Mr. Kirkpatrick has more than 30 years of applied environmental geoscience experience in both private industry and environmental consulting. Outside of work, Gerry enjoys fishing and an occasional single malt.  A very poor chess player, he remains dedicated to the game, nonetheless.