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Karen Budd Falen

Karen Budd-Falen: It’s An EPA “Miracle”—Turning Your “Dry Land” into a “Wetland?”

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By: Karen Budd-Falen 

Remember the story from the Bible where Jesus turned the water into wine? The  Environmental Protection Agency (EPA) can also perform miracles—turning dry land  into a wetland under the Clean Water Act (CWA). 

In fact, according to the EPA, a  “wetland” can be private property that has NO surface water but has water beneath the  surface that then flows under a paved street into a small manmade ditch that goes past  other homes and eventually flows into a lake (a navigable water). 

Because the EPA has  defined this dry land as a “wetland,” placing dirt on that property is regulated by the  agency. 

The case is now before the U.S. Supreme Court to decide whether the federal  government can determine that dry land is a wetland or a “Waters of the United States” (WOTUS) under the CWA. 

In April 2007, the Sackett family broke ground to build a home on a lot that they purchased in a residential subdivision. The lot is bordered by a county-paved road on one side and residential houses on the other three sides. 

After the houses, there is a lake.  Shortly after they began construction, the EPA sent investigators to inspect the job site  for CWA compliance. 

Without doing any of the technical measurements required under  the law, the EPA announced that the Sacketts were violating the CWA by putting  additional dirt on their land without a federal permit. 

The EPA then sent the Sacketts an Order stating that their lot was a “federally regulated wetland” and commanded them to restore the lot to its natural condition and fence it for three years, or face tens of thousands  of dollars in daily fines. 

The EPA Order was based on the property being adjacent to a  small ditch across the street that eventually drained into a navigable lake.  

The U.S. Supreme Court has now taken this case. The landowners are arguing that  the Court should clarify its decision in a prior CWA case from 2006. 

In that case, four  Supreme Court Justices held that the CWA only grants federal authority over a WOTUS  if the wetland (1) exhibits a relatively permanent water flow, (2) there is a continuous  surface water connection between the wetland and a relatively permanent waterbody, and  (3) it is difficult to determine where the wetland begins and the permanent navigable  water ends (called the “connected waters” test). 

In contrast, four Justices argued that the definition of a WOTUS should be determined by the federal government as the CWA  “experts.” 

The “tie” was broken by Justice Kennedy who said he would define a WOTUS  to include a wetland if it bears a “substantial nexus” to a navigable water.

Based on the Supreme Court split, every President has issued a markedly different  rule defining a “WOTUS.” Obama expanded the authority of the EPA over private  property justified by the “substantial nexus” test. 

Trump repealed Obama’s rule and  developed his own definition based on the “connected waters” test. Now Biden is writing  his own rule likely favoring greater authority for the federal government to govern the use  of private property.  

The ruling soon to be issued by the U.S. Supreme Court will hopefully give  landowners an answer as to what lands should be federally regulated under the CWA.  

This firm will be supporting the private landowners in this case because while I believe  that Jesus did and can perform miracles, under the U.S. Constitution, the federal  government should not have that same power.

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Karen Budd Falen: Is Your Local Government a Champion for its Citizens?

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By Karen Budd Falen, columnist

One of the greatest dangers to our rural way of life is allowing people on the coasts (people who often have never visited, much less lived in, our communities) make decisions in an ideological “vacuum” regarding our local natural resources, economies, customs and culture, and property rights.

The Trump Administration fully understood that local governments have the expertise to advocate for our economic, environmental and social well-being because we elect those officials from our communities and counties. Local governments can and should be a champion for their local citizens.

While federal statutes have long recognized that local governments should have a voice in federal decisions impacting their constituents through consistency review with local land use plans, cooperating agency status or coordination, President Trump championed that notion.

For example, Trump’s regulatory reform addressed long overdue updates to the regulations implementing the National Environmental Policy Act (NEPA). The intent of NEPA was to create a process for the federal government and the public to consider potential effects of major federal actions on the human environment.

However, before the Trump reform, NEPA had been abused by radical groups to advance their agenda often to the detriment of the citizens who live with the impact of these federal decisions. To many, NEPA had become a tool to manipulate the federal government to bow to their whims or face years of lawsuits.

In an attempt to de-weaponize NEPA, the Trump regulations clarify that NEPA is not only supposed to analyze the effects that a decision may have on the environment, but also must analyze how it will affect a local community’s economy, customs, and culture.

Additionally, the Trump rules gave local governments the ability to participate in the federal decision-making process, not only when state law allows, but also by defining “special expertise” in areas within the local government’s mission or experience. For local governments that are not “home rule,” this change gives you a voice.

The updated regulations mandate greater up-front participation in NEPA’s process rather than providing environmental groups a way to sandbag agency decision- making with lawsuits.

For example, the notice of intent to complete an environmental impact statement (EIS) must be much more detailed than required under prior regulations and must also include a request for comments. An extra comment period was also added at the end of the process that mandates inclusion of local governments.

Another recognition of the importance of local government participation was the revamping of the requirement to write an EIS’s environmental consequences section to include a discussion of possible conflicts (consistency review) between the proposed action and its alternatives with the objectives of local governments’ land use plans, policies and controls.

The NEPA regulations additionally clarified what constitutes a “major federal action significantly affecting the human environment.” Following the commands of the U.S. Supreme Court, an environmental impact must be “proximately caused” by the proposed federal decision. If there is an environmental impact (either positively or negatively), economic impacts must be considered.

The regulations included a two-year time period to complete an EIS. NEPA is a process-not a substantive mandate. The public and agency decision makers should understand the environmental and economic impacts of decisions and make informed choices within this two-year timeframe. NEPA was not enacted by Congress to simply create reams of paper with no end in sight.

Now, the Biden Administration seeks to revise the Trump NEPA rules. Although Biden cannot just simply undo these changes with the stroke of a pen, the current rhetoric is concerning.

So called “fly-over country” can’t afford to go back to NEPA documents that take 5 or 10 years to complete and never consider local impacts. We don’t know when these Biden changes will be proposed, but we will have the ability to analyze and combat them if necessary.

In the meantime, local governments have the regulatory authority to be involved in decisions that impact our rural way of life. Are your local governments ready and willing to take on this responsibility?

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Karen Budd Falen: Will Biden’s 30 X 30 Plan Be A Repeat of History?

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By Karen Budd Falen, guest columnist
Karen Budd-Falen is an attorney in Cheyenne, Wyoming and former Deputy Solicitor for Wildlife and Parks at the Department of Interior.

I remember my dad saying, “Those who do not know history are doomed to repeat it.” But before we get to the history lesson, consider this:

• Under the 30 X 30 Plan, President Biden wants to add an additional 440 million acres to the 67 million acres of land managed in its “natural state” to preserve biodiversity and combat climate change. The federal government owns 563 million acres already, but the Biden Administration says only 12% of that land is managed in its “natural state” to protect us from the climate crisis.

• According to the Environmental Protection Agency, between livestock and crops, agriculture accounts for about 10.5% of all U.S. climate change emissions.

• The Biden Administration’s goal is to have net zero global emissions by mid-century.

• By 2030, the world’s human population will increase to 8.5 billion people.

• To feed all those people, the world needs farmers and ranchers. According to the American Farm Bureau Federation, the average American farm feeds 166 people, but with the increase in the world’s population, the world’s farmers will have to grow 70% more food than they did in 2019.

Now for the history lesson, anyone of driving age in 1974—or who had a father who loudly complained when driving I-80 across Wyoming—remembers the 55 miles per hour speed limit. That was a time, based on the 1973 Arab Oil Crisis, that Congress mandated that States should “voluntarily” reduce their speed limits to 55 mph to lower gasoline consumption because the U.S. was not energy independent.

The catch was that the receipt of federal highway funds was tied to the “voluntary” speed limit reduction. In other words, if a state reduced its speed limit to 55 mph, it would receive its share of federal highway funds; if a state didn’t comply, no federal highway funds would come its way.

Most states complied and the few that didn’t, quickly took “voluntary” action once the checks stopped coming. The Supreme Court has ruled that the Congress can constitutionally use the power of the purse to “influence” decisions that are normally reserved to the States.

So why reminisce about the 55-mph speed limit when talking about Biden’s 30 X 30 Plan? It is because I worry about Biden’s requirement to “voluntarily” reduce agriculture’s carbon footprint by “us[ing] Department of Agriculture programs, funding, and financing capabilities, and other authorities, . . . to encourage voluntary adoption of climate-smart agricultural and forestry practices.” Sec. 216 (b)(i).

This Administration is already making progress on its climate change goals. First, it has cancelled its federal oil and gas lease sales mandated under the Mineral Leasing Act, on the theory that perhaps wind and solar can replace oil, gas and coal as our energy source. I have not found a lot of affordable commercial all-electric tractors that could be used on farming or ranching operations today.

Second, the Department of Agriculture has just significantly increased its “payment rates and financial incentives” to convince landowners to enroll additional acres into the Conservation Reserve Program (CRP). While landowners have to right to do with their land what they want, I worry about paying agriculturalists not to produce.

Third, there are those advocating that USDA use its other “financial tools” such as federal crop insurance programs, farm payment programs and increasing collaboration with federally backed agriculture lenders to encourage “voluntary” climate smart agriculture (CSA).

There are plusses and minuses with all CSA, but the landowner needs to be able to consider those without the federal government tipping the scales by “voluntarily” withholding certain payments or getting between a landowner and his ag lender if the landowner does not pick the program chosen by the federal government.

And I also wonder this? How are farmers and ranchers going to feed 8.5 billion people in 2030 if there is no American oil and gas for tractors, we are paying landowners not-to-produce or produce less, and multiple use on federal lands is curtailed or eliminated to reach the 30 X 30 Plan goals? And what I am really warning is that the history of the federal government’s “voluntary” 55 mph speed limit NOT be repeated today.

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Biden’s “30 By 30 Plan” – a Slap at American Private Property Rights

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By Karen Budd Falen, guest columnist
Karen Budd-Falen is an attorney in Cheyenne, Wyoming and former Deputy Solicitor for Wildlife and Parks at the Department of Interior.

No matter how far agriculture has come in showcasing our environmental stewardship; no matter how many times agriculturists explain that we are feeding, clothing, and providing energy to the citizens of the world; no matter how loud we shout that we have more incentive than anyone in protecting the health and resiliency of our private and federally permitted land because we can only sustain a ranch or farm by caring for the environment, agriculture is still condemned by those with no knowledge of agriculture. 

A prime example is Biden’s 30 X 30 Plan. (Executive Order on Tackling the Climate Crisis at Home and Abroad, January 27, 2021).

While there are a lot of things in the Executive Order that give me concern, the thing that hurts the most is the thought that the ownership and use of private property and the multiple use of federal land (in Biden’s view) is antithetical to protecting the world from climate change and preserving biodiversity. 

Revealingly, under the Executive Order, for the Biden administration, the solution to global climate change is for the federal government to (1) acquire more private land to take it out of production and (2) eliminate all use on federal land— to the tune of a total federal control of an additional 440 million acres of land or oceans in the U. S. by 2030. 

This is shocking in its scope. To break it down, under the Executive Order and documents published by the Department of the Interior, the Biden Administration believes that only 12% of the approximately 563 million acres of federal land in the United States is managed for “the preservation of biodiversity” thus additional uses have to be eliminated to ensure this land is managed in its “natural state.” 

Then the Biden plan is to acquire an additional 440 million acres by 2030. That amounts to more land than twice the size of Texas.

The question now is how will the federal government acquire an additional 440 million acres of private land and eliminate more uses of federal lands that already contain many restrictions? 

Condemnation and “strong-arming” will likely be the answer. 

Even though it won’t make the nightly news, federal agencies are already implementing this “Biden vision.”

On February 11, 2021, the Acting Secretary of the Interior signed an Order eliminating the Trump Administration’s requirement for state and local government approval prior to the federal government’s acquisition of more private lands with moneys from the Land and Water Conservation Fund (LWCF).

Shockingly, that Order claimed that allowing local governments to have a voice in land acquisition directly impacting their counties “undermined” the program. 

While LWCF moneys are touted as being used to “secure public access and improve recreational opportunities,” the money can also be used to acquire private lands into federal ownership. 

Because no property taxes are paid when land is owned by the federal government and since there will be no jobs associated when the newly acquired land is left in its “natural state,” the acquisition of these lands and the elimination of more uses from the federal lands will absolutely harm the local tax base and employment opportunities that supports rural schools, roads, and other necessary services. 

With the passage of the Great Americans Outdoor Act in 2020, Congress already will make $900 million a year available for the LWCF, but they will need billions more to achieve this radical acquisition goal.

All of rural America and anyone who believes that local control of resources and that the American farmer and rancher is the backbone of this country should be alarmed at the notion that only the federal government, owning land in its “natural state,” can combat climate change and the loss of biodiversity. 

I think we are in for a fight to protect American agriculture and our rural way of life.

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Will “Fly-Over Country” Have a Voice to Protect Private Property Rights Under the Endangered Species Act?

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By Karen Budd Falen, guest columnist
Karen Budd-Falen is an attorney in Cheyenne, Wyoming and former Deputy Solicitor for Wildlife and Parks at the Department of Interior.

The proceedings in a distant courthouse in Hawaii might not normally be the central focus of  most private property owners, but recent actions at one can only be viewed as the beginning of  an effort to crush the voices of rural America, state and local governments and Indian Tribes.  

Recently, the Biden Administration’s Justice Department and the environmental litigation  group EarthJustice entered into an agreement to stay the proceedings in litigation Earthjustice  brought as a nationwide effort to overturn regulations developed in 2020. 

This agreement is  likely the first step at trying to eliminate regulations that affirmatively give State governments,  local governments, and Indian Tribes a greater voice in designation of critical habitat under the  Endangered Species Act (ESA). 

These 2020 regulations require the Fish and Wildlife Service  (FWS) to substantively consider “economic, national security and other relevant impacts” of the  designation of critical habitat on private property and federal lands. 

Although groups like  Earthjustice completely exaggerate its description of the impact and requirements of those regulations, the request of the Department of Justice to stay the litigation is consistent with the Biden Administration’s view that Washington D.C. knows what is best for rural America as  opposed to the State and local governments and Tribal leaders who represent these areas. 

It is  simply back to the mindset that one size fits all from Washington D.C. is the correct answer to  all problems. 

ESA section 4(b)(2) was a Congressional amendment to the ESA responding to the Supreme  Court’s 1978 decision in Tennessee Valley Authority v. Hill. 

That amendment required the  federal government to consider exclusions of particular areas from proposed critical habitat  designations based on economic, national security or other relevant impacts. 

The only caveat by  Congress was that the federal agencies could not exclude areas from critical habitat if it would  cause extinction to the species.  

Understanding Congress’ concern that critical habitat designations can have significant negative  impacts on private property uses, local economies, jobs, State and Tribal wildlife management agency plans and programs and can cause unlimited environmental destruction such as  increasing catastrophic wildlife or invasive species which harms threatened or endangered  species, in 2020 the Secretary of the Interior issued regulations that require consideration of  these human and environmental impacts as seen through the eyes of those who are directly  impacted by proposed designations, in other words, State and local governments, Tribal  governments, private property owners and federal lands users. 

Of course, areas of critical  habitat can never be excluded if exclusion will result in extinction of the species. 

That mandate  is noted in the ESA as well as in the 2020 regulations. But a plain reading of the statute shows  that it is a policy choice whether the Secretary of the Interior will exclude particular areas from  proposed critical habitat based on human use, jobs, rural families, local economies, and the local  environment, so long as the species does not go extinct. 

And who better to describe these economic and relevant factors than the state, local and Tribal representatives who live and work  in areas where critical habitat is proposed. 

Thus, in 2020, the Secretary made the right choice to  require the FWS use the credible information provided by state governments, local  governments, and Indian Tribes to exclude these areas from designation as critical habitat so  long as the result is not extinction of the species concerned.  

Having long advocated that State and locally elected officials should have a significant and  considered voice in the federal agency decisions directly impacting them, the EarthJustice  litigation and the Biden review of the ESA 4(b)(2) regulations are a huge concern. 

I would urge  State, Tribal, and local officials and rural America to advocate that the 2020 regulations be  strongly defended by the Justice Department as the right policy supported by law and the right  protection for rural America, property rights and users of the federal lands. 

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