One of the least libertarian parts of environmental law is the Clean Water Act. Although the law pays lip service to federalism and property rights, in practice, bureaucrats use it to bludgeon innocent property owners. Its prohibition against the “discharge” of “pollutants” into “navigable waters” has been stretched so far that it has been used to threaten or punish innocent property owners for building a pond on their property, plowing farmland, removing trash from a ditch, or trying to build a home.
President Trump has issued an executive order directing the agencies he oversees to reconsider the latest expansion of bureaucratic power. The Waters of the United States rule (or WOTUS rule) asserts broad authority over waters and, in many cases, dry lands far away from any navigable water. Beyond the myriad policy objections to such a broad assertion of federal authority, the executive order also directs the agencies to reconsider how they interpret their legal authority under the Supreme Court’s most recent decision on this question.
During the signing ceremony for the order, the President specifically referenced the nightmare that federal bureaucrats put Wyoming’s Andy Johnson and his family through for innocently building a pond on their property.
In describing the treatment of Johnson and his family, the President explained:
These abuses were, and are, why such incredible opposition to this rule from the hundreds of organizations took place in all 50 states. It’s a horrible, horrible rule.
It is difficult to overstate the absurdity of the government’s actions in that case. Johnson built his pond to provide a safe, reliable water source for his daughter’s horses. But he also wanted the pond to improve his property and the environment. It certainly did that. Thanks to Johnson’s work, the pond has created wetlands, habitat for fish and wildlife, and it cleans the water that passes through it.
But these environmental benefits did not stop EPA officials from accusing him of violating the Clean Water Act by not getting their permission first, an accusation backed up by threatened fines of up to $37,500 per day until he ripped out the pond. In the nearly two years, he spent trying to explain their error, those potential fines grew to over $20 million.
I can’t imagine the stress Johnson, a father of four, experienced having a potential $20 million hanging over his head like the sword of Damocles. Thankfully, that story had a happy ending. I and my colleagues at PLF challenged EPA on his behalf and, once required to defend the actions, the agency quickly backed down, agreeing to let Johnson keep his pond and pay no fine.
The WOTUS rule, by further expanding federal authority, would have put even more people in Andy’s shoes. But the executive order is not the finish line for reforming WOTUS and the Clean Water Act; it’s the starting line. Now, the agencies will have to decide how to proceed through the administrative process to repeal and replace this power-grabbing rule. And the President will have to decide whether the government will continue to defend the rule in Court.