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Friday, January 28, 2022
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Opinion
Editor & Publisher
Managing Editor
Joe Beach
Carl Sampson
opinions@capitalpress.com | CapitalPress.com/opinion
Our View
Write a plain-language WOTUS rule
T
he Environmental Protection
Agency’s Farm, Ranch and
Rural Communities Advisory
Committee last week submitted a list
of recommendations to administrator
Michael Regan on the intended revi-
sion of the definition of “Waters of the
United States.”
They are full of so much common
sense that we don’t see how they can
possibly be adopted by an agency of
the federal government.
At issue is which bodies of water
can be regulated by the federal gov-
ernment under the Clean Water Act.
The act gives the feds jurisdiction over
navigable waters of the United States.
Conflicting Supreme Court interpreta-
tions over the act’s meaning and intent
rendered the precedents unworkable,
and new rules were necessary to make
jurisdiction clear.
In 2015 the Obama administration
extended regulation to isolated bodies
of water having a “significant nexus”
with navigable waters of the United
States. The rule left it to the bureaucrats
to determine that nexus, and that made
farmers and ranchers nervous.
President Trump suspended the
rule. The Biden administration re-es-
tablished the pre-Obama definition of
WOTUS as it consults a broad “array
of stakeholders” to rewrite the rules.
The committee submitted four
recommendations:
• Adhere to Clean Water Act and
relevant Supreme Court precedent in
cases that reinforce Congress-placed
limits on the scope of federal jurisdic-
tion under the act by using the term
“navigable.”
Any definition of WOTUS should
be limited to traditional navigable
waters and territorial seas. Jurisdiction
over non-navigable tributaries should
be limited to tributaries containing
clearly discernible physical features, as
well as consistent flow into tradition-
ally navigable waters.
• Define WOTUS using clear terms
that are easy to interpret and apply. The
most important aspect of any definition
of WOTUS is it must be easily inter-
preted by farmers, ranchers and leaders
of rural communities and interpreted
with clear lines of jurisdiction. It is nec-
essary that a new WOTUS rule avoid
vague terminology that both landown-
ers and regulators cannot apply without
engaging in burdensome analyses.
• Define jurisdictional features with
an eye toward allowing farmers, ranch-
ers and rural communities the neces-
sary flexibility to implement innovative
environmentally beneficial projects that
do not adversely impact the function or
water quality of WOTUS.
• Retain exclusions that are critical
to farmers, ranchers and rural commu-
nities and recognized regional differ-
Our View
How River Democracy
Act threatens E. Oregon
Editor’s Note: Rep. Cliff
Bentz spoke on the floor of the
U.S. House on Jan. 12 in oppo-
sition to the River Democracy
Act, which is sponsored by Sen.
Ron Wyden, D-Ore. These are
his remarks.
rise today in opposition to
S. 192, the so called “River
Democracy Act.”
This bill, contrary to what
the title implies, has nothing to
do with democracy. Instead, it
would, if passed, label some
4,700 miles of Oregon riv-
ers, creeks, and streams as
“Wild and Scenic” (a more
appropriate phrase would be:
“just waiting to be burned and
ruined.”)
However, this is not your
typical Wild and Scenic River
bill. This bill would desig-
nate a mile-wide corridor run-
ning the length of every inch
of those 4,700 miles of water-
ways as “wild and scenic.”
This mile is double the half-
mile- wide corridor normal for
such designations.
This means that, under this
act, 4,700 square miles, an area
about the size of Connecticut,
would be locked up and left to
the high probability of burn-
ing up.
Many of the miles of
streams, creeks and gullies to
which this bill would apply are
within the 20 counties making
up my district. Many of those
miles run through Oregon’s
most important watersheds,
which are absolutely essential
to life in my communities, par-
ticularly in times of drought.
Given the damaging impact
of designations to activities nec-
essary to protect these streams,
it’s no wonder that this bill is
deeply unpopular — something
that has been made crystal clear
to me by the overwhelming
majority of my 62 county com-
missioners. They have serious
and unanswered concerns about
the dangers the act presents.
Chief among them is that
this designation will prevent
what needs to be done to pro-
tect these watersheds — placing
them in a bureaucratic waste-
land where it will take years, if
not decades, to initiate and then
complete plans that may or may
not allow the treatment activi-
ties needed right now.
Also, a top-down approach
to land management is wrong
because it completely ignores
the interests of the well-in-
formed local people, businesses
and stakeholders.
The approach the bill’s spon-
sors used in developing this bill
was seriously flawed because
river and stream nominations
were solicited from various
groups and the general public
without any clear legal or sci-
entific analysis to identify those
rivers, streams and creeks that
would qualify as scenic. If a sci-
entific or legal analysis exists,
the sponsors should share it.
Additionally, the public
deserves to know which spe-
I
Don Jenkins/Capital Press
The Chehalis River flows past farmland in southwest Washington. Gov. Jay Inslee has proposed mandatory
buffers along waterways statewide.
Washington buffer bill has
too many shortcomings
W
ashington state has for years had
the Voluntary Stewardship Pro-
gram, which is aimed at improv-
ing salmon habitat along rivers and streams.
Under the VSP, farmers, ranchers and other
landowners opted to participate by planting
riparian areas to help the fish.
By all lights, it was a success. Its only short-
coming was the legislature has occasionally
underfunded it, or not funded it at all.
But now legislators are considering killing
the Voluntary Stewardship Program and replac-
ing it with mandatory legislation that could
damage many of the state’s farmers and ranch-
ers and leaves many questions, including the
cost, unanswered.
Gov. Jay Inslee is pushing the legislation,
House Bill 1838. It would toss out the volun-
tary program and replace it with a mandate to
create buffer zones along any salmon stream in
the state. According to the bill, the width of the
zones would be “site potential tree height.”
In other words, the buffers would be as wide
as the state Department of Fish and Wildlife
says they should be.
That’s not much comfort for a farmer,
rancher or other landowner who is unfortunate
enough to be caught up in this legislation.
It should be noted that while farmers and
other landowners would be mandated to plant
riparian buffer zones, cities such as Seattle and
tribes would be exempted from the bill, unless
they opt in.
Instead of working with landowners to iden-
tify key riparian habitat, the bill would include
all watersheds in a map dictating where riparian
zones are and how wide the buffers would be.
If a farmer owns land identified as a ripar-
ences. The most important exclusions
are prior-converted cropland, ground-
water, farm ditches, road ditches,
canals, ponds, playas, stock ponds,
prairie potholes and other isolated
features.
In addition, storm water detention,
tail water recovery or other environ-
mentally beneficial practices should
not be considered WOTUS. Wastewa-
ter, reclaimed water or recycled water
systems should not be considered
WOTUS.
A clear and consistent definition of
WOTUS, in plain language, that any
farmer or rancher could understand
would keep farmers out of trouble.
But, that’s not the kind of language
favored by the regulators. They pre-
fer vague rules that allow them to eas-
ily expand their authority and find
violations.
We hope these recommendations are
included in the final rule.
ian zone, the state would pay for only a portion
of the cost of planting trees and a portion of the
lost value of the land. No mention is made of
the crop production that would be lost forever.
That’s known as a taking. Landowners
should be fully indemnified for the lost value
and production of their land.
Farmers failing to comply with this new
mandate would be subject to a fine of $10,000
a day.
This has farmers worried, and it should
worry legislators as well.
Washington State Dairy Federation policy
director Jay Gordon estimated that, if the bill
were enacted into law, it would take away his
right to farm 480 acres.
That’s just one farm. Multiply that by thou-
sands of farms that would be impacted, and the
state would be on the hook for an inestimable
amount. Since the legislation doesn’t specify
how wide the buffers would be, it is impossible
to calculate the cost to the state, or to farmers
and ranchers.
Inslee and his staff put together the legisla-
tion in cooperation with members of Washing-
ton’s tribes. Inexplicably, they did not include
the state’s farmers, ranchers and other private
landowners in their discussions.
We have a suggestion. Legislators should
talk with farmers, ranchers, tribes and others
and take a close look at the Voluntary Stew-
ardship Program, which has been so success-
ful, and identify any areas where it might be
improved.
There is nothing wrong with taking a good
program and making it better. Adequately fund-
ing it would be a step in the right direction.
Then they can take House Bill 1838 and toss
it in the recycling bin.
GUEST
VIEW
Rep. Cliff
Bentz
cial interest groups crafted the
bill, provided the unofficial
maps of the streams affected,
and conducted the outreach to
the public.
It is absolutely clear, what-
ever the process was, that local
stakeholders, elected officials,
county commissioners, land-
owners and users and experts
should have been consulted and
they were not.
Let me explain why so
many, who truly want to pro-
tect our public lands, are so out-
raged by this bill.
So far last year, over half
a million acres of forests and
other lands have burned up in
my district. The year before, it
was even worse, with over 1
million acres laid to waste.
Inexplicably, the bill focuses
upon only one method of pro-
tecting this 4,700 square mile
area from fire, and that is by
“prescribed burns.”
I cannot emphasize enough
how dangerous it is to use pre-
scribed burns in overgrown,
densely packed, dry forests
without thinning the forest first.
Prescribed burning (before thin-
ning) puts at extreme risk the
very rivers and watersheds the
designation is supposed to pro-
tect! It is like dropping a match
in a tinderbox. It is impossible
to contain these types of fires
once they start.
The River Democracy Act,
if passed, would threaten water-
sheds, homes, businesses,
farms, ranches, livestock and,
most importantly, human lives.
The bill contains provisions
throughout it that leave the door
wide open for frivolous litiga-
tion by far-left special interest
groups, who have profited for
years from lucrative sue-and-
settle tactics.
The bill contains no explicit
protections for the current mul-
tiple uses of the land, includ-
ing: sustainable timber harvests,
hunting, grazing, fishing and
mining.
Regardless of legislative
intent, the applicable agencies
will have broad authority to
restrict these activities.
To date, no official maps
have been provided. Orego-
nians need to have access to
clear, official maps to see just
how much land is affected by
this bill. I believe no further
action should be taken with
regard to this bill until the ques-
tions I have raised today and
necessary maps are made avail-
able to the public so that Ore-
gonians know exactly what this
bill would do.
Cliff Bentz, a Republi-
can, represents eastern Ore-
gon in the U.S. House of
Representatives.