One of my favorite parts of serving as Indiana’s attorney general is talking to Hoosiers across our great state. At a recent stop near the city of Greenfield, a reporter asked me: What’s the deal with your lawsuit against the Biden administration over the Waters of the United States rule — aka WOTUS?
It’s a fair question.
A casual reader of the headlines might wonder why Indiana and 23 other states would sue the federal government over a seemingly arcane change in how the U.S. Environmental Protection Agency defines the term “navigable waters.”
But, with Biden’s blessing, the EPA has unilaterally expanded the authority Congress gave it to regulate actual navigable waters — think bodies of waters large enough to accommodate commercial watercraft along with certain streams that flow directly into them. The EPA has now declared it may exert control over a much larger category of ponds, streams, ditches and wet areas of ground.
In short, this is a power grab by unelected bureaucrats. With Biden’s blessing, they are trying to ride roughshod over the rights of farmers, homebuilders and other property owners. Further, they are usurping states’ sovereign authority over waters within their borders to the detriment of the federal structure.
Anyone familiar with U.S. history knows that such usurpation of authority flies in the face of our identity as a free country.
Going all the way back to our founding, one of the central principles of American liberty has been the idea that every individual has the right to own property — and to use that property as one sees fit so long as one is not violating the rights of others in the process.
» Related reading: It’s understandable that farmers aren’t happy with the new WOTUS rules
From the beginning, the profitable exercise of property rights has been the engine powering American free enterprise. This tradition has produced levels of prosperity unlike anything the world has ever known.
Here in Indiana, farmers have been at the forefront of those using their property rights in a manner that serve the greater good — which, for agriculture, includes the function of feeding the world.
While creating jobs and sustaining the economy, Americans have used wealth born of property rights to advance all manner of positive altruistic outcomes — curing cancers, helping the homeless, conserving endangered wildlife and the list is virtually endless.
“The true foundation of republican government,” Thomas Jefferson wrote, “is the equal right of every citizen in his person and property and in their management.”
More than a century earlier, the great English philosopher John Locke enumerated “life, liberty and property” as three of the “natural rights” inherent to all humanity.
So, among all those who believe in these traditions favored by Locke and Jefferson, it should be a matter of consensus that the regulation of property rights should be kept minimal and as close to the actual holders of those rights as possible.
Which brings us back to the WOTUS rule — the standard under which the EPA and the U.S. Army Corps of Engineers carry out water resource management under the Clean Water Act of 1972.
As our lawsuit states, if the Biden administration’s rule stands, then farmers and others “will struggle to undertake even the simplest of activities on their own property without fear of drawing the ire of the federal government.”
Landowners, our lawsuit further states, “will be left with a choice: (a) fight their way through an expensive and lengthy administrative process to obtain complex jurisdictional determinations and permits or (b) face substantial civil and criminal penalties. The Final Rule’s ambiguous environmental benefits do not justify any of this.” (You can read the lawsuit online.)
It need not be this way. With its 2020 Navigable Waters Protection Rule, the Trump administration put forward a much more sensible policy that kept federal jurisdiction in check.
Indiana and other states, meanwhile, are doing a good job protecting their environmental resources without the need for excessive intrusion by the EPA.
It’s time to reject federal overreach and restore respect for the traditions of liberty, state sovereignty, and property rights that have always served us best.