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WOTUS Revisited

Well, here we go again. Long-time readers will recall my rants over the past decade as Realtors fought against the so-called WOTUS rule, the Waters of the United States. This was an Obama era expansion of the 1972 Clean Water Act that sought to redefine what constituted a ‘navigable waterway’ to include not only bodies of water like Lake Elsinore, Diamond Valley Lake or the Colorado River, but a seasonal runoff from your land, an irrigation canal, or an ‘ephemeral pond’ (i.e. a puddle), and put them under federal control.

Environmentalists hailed the proposed rule from the EPA, as a way to save the environment as well as stop or delay construction projects they didn’t like. Oh, and incidentally give the feds veto power over fossil fuel development on PRIVATE land. Several states immediately sued to halt the rule from being enforced and WOTUS was effectively stalled for the final years of the Obama administration.

Then came Trump. One of this first actions was to deem WOTUS as unnecessary B.S., tell the EPA to pound sand, and get out of people’s private property. So, during nearly 3 ½ years, WOTUS reverted to the terms of the 1972 Act providing certainty and freedom for development within the rules without negatively impacting the environment.

However, in his efforts to undue anything Trump, regardless of merit, the Biden administration has announced plans to revisit the rule and allow the EPA to resume their land grab and effectively limit farming, fracking, drilling, home building, and other economic activity. Why? Because 1) it was a Trump thing, and 2) the EPA complained it unnecessarily ‘constrained’ their regulatory powers and eliminated federal permitting requirements for more than 300 projects currently underway in states across the country, and 3) who needs houses and energy anyway?

Some of the control they hated to lose include their control over farmers digging or filling in irrigation ditches to water their crops, cities needing to build or expand roadways, parks or other civic projects, private landowners from building roads on their property or developing any area where seasonal runoff or puddling occurred, and the list goes on. And it’s not just developers or municipalities that will be impacted. For example, if you live in the Wine Country or La Cresta and you have a low-lying area on your property where rainwater collects, or there’s a temporary watercourse that may flow for a few hours during a heavy rain, YOUR property will now be subject to expanded federal control over YOUR ability to use YOUR land. Your rain puddle will become a ‘navigable waterway’ under the EPA’s assumption that you could sail a frigate down your drainage ditch or that your runoff will somehow deleteriously impact a water course already under their control potentially miles away.

Need another laugh? President Biden wants Congress to shovel out trillion of dollars for his fabled ‘infrastructure’ improvements, which the EPA, under the revised WOTUS rule, would then tie up in their permitting and regulatory processes until any moneys that might have actually made it to road, bridge, or damn improvements or construction have been used up. Because you know how efficient our government bureaucracies are at processing paperwork and approving projects, especially those that are not in favor at the moment. If you thought the federal government worked slowly under President Trump, you ain’t seen nothing yet.

Of course, there is a way to circumvent the lengthy process and assure your project is fast tracked. Just make sure you call it a ‘green’ project or that it accomplishes some ‘social justice’ goals and you’ll be rolling in dough whether your project ever finishes or not. Hey, we’re from the government and we’re here to help. Trust us.

Written by Gene Wunderlich, Sr. Staff Writer

Prior to his retirement in 2021, Wunderlich served on a number of local non-profits and boards. He spent the past decade as a legislative advocate for the housing and real estate industries as well as a coalition of local Chambers of Commerce advocating on behalf of small and local businesses.

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