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by Patrick di Santo 11 months ago in legislation

policy analysis

all rights reserved IDP, BMI publishing, 2021.

Like with all law, areas are left loose in efforts to allow the deciding powers to adjust the law to the specific problem at hand. Unfortunately unlike the forests that are being discovered to have a democratic if not social understanding of reality on earth. When others are allowed to grow strong and powerful it makes a secure environment for the entire forest to strive. If you include your neighbors in your prosperous endeavours in turn they will alarm you when danger is present.

In support and to clarify the advantageous nature of policy making, like with the myriads of updates that follow modern programs, often, policy needs to be cleared. This waltzing from bipartisan agenda to agenda before achieving a baseline of goals is the dizzying pace modern democracy has taken, one step forward three steps back. Each administration engaged in the archaic revival of democracy of yesteryear, with the contemporary addition of capitalism. Two millennia ago, Plato complained of corruption and greed perverting the pureness of the democratic system. This subject is tired and well known if not by the average US citizen, most definitely within the halls of current US policy making.

WOTUS/NWPR is the epitaph of US policy, what needs to be addressed in the US policy making platform presently. Water is not an element to play with neither is the responsibility officials have to the nearly 8 billion people on the sphere today. The push me pull me policy carnival is the antithesis of democracy and why incrementalism is inert and express reform is needed. Science has understood that most brooks and streams lead to larger upon large waterways until reaching the massive filter of our oceans. The filter is now injured, the living mechanism that cleans our water is not functioning to its potential. The lack of protection for the tributaries and supplying rivers and streams compromised by CORP who crie profit deficits, when presented with policy reform.

In psychology this is considered pathology, forcing the majority to abandon moderation and minimalism to supply the gluttonous egos with product in an attempt to fill a void of self loathing that can not be filled by materialism. It is no longer just the US citizens that are in jeopardy by losing the commodity of clean water. WOTUS responsibly protecting what NWPR responsibly neglects. Interpretation of ENVN policy is negligible in protecting the water of the world, the problem appears to lie within the interpretation of the law that exists since 1973. Neither superior nor inferior to the other WOTUS/NWPR is maliable to the ENVR attorney, the waters of the world are in theory being protected from CORP negligence.

Educating the population to the importance of this commodity, is as easy as mandated early education and participation in behaviours that protect it. If the example to children and youths is CORP navigating the judicial loop holes to provide financial gain, they have no baseline to mirror.

The final rule of the Navigable Waters Protection Rule, signed by President Donald Trump on January 23, 2020, is much less disconcerting than most all the hidden behaviours of some of the presidents from 1973-2020. The US EPA and the Army finalizing the NWPR to define WOTUS. Presenting a streamlined definition that includes four categories of water and features that have not been regulated clearly historically. WOTUS explicitly directs agencies to protect “navigable waters.” NWPR regulates waters, core tributary systems with perennial or intermittent flow. This executive order 13788, reflects legal precedent set by key Supreme Court cases (NAHB, 2020).

NWPR provides many improvements in the WOTUS policy, like the elimination of “significant nexus” test: no longer relevant due to the NWPR’s maintenance of surface connection to traditional navigable waters. This encompasses fewer adjacent wetlands as NWPR only asserts authority where surface connection to other jurisdictional waters in a typical year, not “neighboring” and “similarly situated” waters covered by the 2015 rule. It excludes ephemeral waters and to waters that form only in response to rainfall. WOTUS 2015 included ephemeral features. NWPR requires tributaries maintain perennial flow and does not depend on physical observations of “bed and banks'' and a 2020 Definition of Waters of the United States Navigable Waters Protection Rule 2020 Definition of Waters of the U.S. March 2020 “ordinary high-water mark”. Excluding all ditches unless they satisfy the conditions of a traditional navigable water or tributary (EPA, 2020).

In fact, compared to previous criterion, the NWPR appears as a modernization that protects states and landowners from federal oversight, focusing on conditions that are readily observable.

In reality NWPR respects states, localities, tribes, and private property owners. Giving state and local authorities more flexibility to determine how best to manage responsible waters. Four clear categories of waters that are considered. Territorial seas and traditional navigable waters, large rivers and lakes ie: Mississippi River, Great Lakes, Chesapeake Bay, Erie Canal, tidally-influenced water bodies, tributaries including perennial and intermittent rivers and streams that contribute surface flow to traditional navigable waters in a typical year (NAHB, 2020).

Surface water channels must flow more often than just after a single precipitation, ie: perennial or intermittent. Ditches are to be considered tributaries only where they satisfy the flow conditions of the perennial, intermittent tributary definition, whether constructed in or relocated adjacent to wetland, contribute perennial, intermittent flow into traditional navigable water in a typical year.

Lakes, ponds, impoundments of jurisdictional waters, lakes, ponds, impoundments of jurisdictional waters ie: Lake Pepin in Minnesota and Lake Travis in Texas, are jurisdictional when contributing to surface water flow into a territorial sea in a typical year, this includes the flow from the sea also, channelized non jurisdictional surface waters, artificial features, culverts, spillways, natural features, debris piles, boulder fields, lakes, ponds, when flooded, certain oxbow lakes along the Mississippi River. Also included are wetlands that touch other jurisdictional waters ie: Horicon Marsh, Rock River in Wisconsin. Natural berm, bank or dune are also wetlands that flood in a typical year, wetlands separated from jurisdictional water via dike, barrier, artificial structure, direct hydrologic surface connection between the wetlands in a typical year, culvert, flood, tide gate, pump (Trump EPA, 2020).

An adjacent wetland is jurisdictional in its entirety when a road or similar artificial structure divides the wetland, as long as the structure allows for a direct hydrologic surface connection through or over that structure in a typical year.

The final rule also outlines what are not “waters of the United States.” Bodies of water that are not included in the four categories of “waters of the United States” above, in an attempt to provide clarity in the final rule. Groundwater, including water drained through subsurface drainage systems, such as drains in agricultural lands, ephemeral features, streams, swales, gullies, rills, and pools. Stormwater run-off, farm and roadside ditches, converted cropland retains its longstanding exclusion, defined for the first time in the final rule. Exclusion that will cease to apply when lands are not agricultural in purpose for five years reverted to wetlands. This final rule continues to address specifics of artificially irrigation, flooded agricultural production acreage, artificial lakes and ponds, water storage reservoirs, farm, irrigation, stock watering, and log cleaning ponds, waters incidental to mining or construction activity (of concern), sand, or gravel pits, stormwaters, groundwater recharge, reuse, wastewater recycling, detention, retention basins (NAHB, 2020).

Waste treatment systems excluded from“waters of the United States” since 1979 continue to be excluded under the final rule. Wastewater for the first time, includes all components, including lagoons and treatment ponds, convey, retain, concentrate, settle, reduce, remove pollutants. Actively or passively, from wastewater prior to discharge, with what allegedly is a clear distinction between federal waters and waters subject to the sole control of the states, their governmental subdivisions, and tribes.

My family had a berry farm, bought from the Dutch in the 16c, who had bought it from the Mohawk Nation. This is one of the oldest cultivated berry farms in the US. As restoration was underway 11 springs had been identified and tested for some of the clearest, most pure water in the US. During Katrina, Irene, and Sandy water tank trucks came to the property to obtain relief from hauling restrictions. At 48 gallons a minute, Poland Springs was interested in leasing the springs, when a neighbor obtained zoning for a non agricultural business in an agriculture zone. Within 30m of the main AA class spring head and B class stream, a porta potty business was allowed, forcing my family off the property due to the constant threat of compromised water.

The county EPA allowed this business to alter the integrity of the land and waters of this designated C class wetland, AA class springs, and B class stream. Exhausted by the judicial bureaucracy, threatened with bankruptcy and without advocacy post head injury the farm was turned over to the bank. This is not a singular situation, it happens county to county state to state, as profit margins and ignorance of ENVN policy by officials who favor temporary county profit.

Many high-ranked political officials at the state and federal level at the time were contacted during WOTUS revisions regarding the lack of ENVN safety mechanism and we were promptly referred back to the county EPA. Today the brook is altered, the farm overgrown, and the non agricultural business looking to sell. Hellbrook runs directly into the Hudson river, which in turn eventually runs into the Atlantic ocean.

It is a global epidemic greater than Covid 19 that soon will come to bite us all in the ass. “delay and political pressure can lead to uncertainty for all concerned” (Kerry, 2019). The day is now here that each citizen of the globe who is healthy and strong needs to stand strong, lifting their neighbor through whatever means is needed. Wellbeing and education namely. If the window passes the forest we call our communities will vanish under the over produced necessities that policy makers use as career status. Career politics is as outdated and as ineffective as incrementalism. Mandatory participation in GOV a necessity and the most simple solution.

“One only has to look at the history of net neutrality. Whatever one’s view of the merits … since the FCC began active rulemaking… the rise and fall of two dramatically different sets of rules and ongoing judicial challenge has led to a long period of uncertainty”(Kerry, 2019).

What evidence is needed that mandatory participation in the government is the only means to the endless uncertainty and unsatisfactory results for all. This includes consumer and business, by allowing CORP to remake main street at each pond in the neighborhood we have limited the options to health, both mentaly as well as physically. WOTUS did not ensure that the pond was safe when it allowed CORP to rebuild the millionth main street to feed the US population with fast food. It is no wonder the world questions the US ethic.

As technology accelerates our day to day life too needs the GOV and MIL system of which EVRN is part of GOV, without the population understanding the importance of strong, basic essentials of food, waste treatment, and refuse we are relinquished to the proverbial rat on the wheel never making progress. Strong EDU and participation incentives will allow stronger growth in areas of solutionism. “We should learn from this experience that whatever … law Congress may pass, the more it leaves to FTC rulemaking, the greater likelihood of delay and uncertainty” (Kerry, 2019).

“ … Administrative Procedures Act and the courts … published the Navigable Waters Protection Rule in the Federal Register, which replaced …. WOTUS … and completed the rulemaking process described by Rosenbaum at the outset of Chapter 3 (Kerry, 2019).

To “Bury a Motion” is a malicious tactical practice in law, it is legal, an effective way to cloud an issue, distract, or redirect those reviewing a subject or concern. It is to bury under multiple filings the intention of an individual motion. This is how bipartisan politics keep motions from becoming bills. Though it does seem exceedingly counter productive to flop each partisan decision made by the previous party. This is yet another reason incrementalism falls victim to those who want to manipulate democracy for temporary capitalistic goals, burying the actual issue under the bureaucracy that clogs the mechanism for decision making in the US today.

In reality the NWPR presumably was implemented to limit federal jurisdiction to only waters that “maintain a sufficient surface connection to navigable waters of the territorial seas.” Attempting to clearly distinguish waters, based on commonly-agreed standards for CWA jurisdiction, supported by statutory text and Supreme Court decisions. The latest rule pre 2021, is organized into sections 1) key terms and concepts, 2) waters and features that are WOTUS, and waters and features that are not WOTUS.


EPA (2020) EPA and Army Deliver on President Trump’s Promise to Issue the Navigable Waters

Rule: A New Definition of WOTUS.


Kerry, Cameron F., Daniel J. Weitzner (2019) Rule Making and Discontents: Moving from

Principle to Practice in Federal Privacy Legislation, Tech Tank.

NAHB (2020) Definition of Waters of the US, Comparison of Prior and New WOTUS Rules. • Additional fact sheets along with copies of the final rule and supporting analyses are available on EPA’s website at

Trump, EPA (2020) Overview of the Navigable Waters Protection Rule, US EPA :


Patrick di Santo

Research Scientist affiliated with the University of Kansas

and The Union Center for Cultural and Environmental Research

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