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Three federal agencies work together to curb tens of thousands of new housing units each year: the United States Army Corps of Engineers (“USACOE”), the Environmental Protection Agency (“EPA”), and the United States Fish & Wildlife Service (“USFWS”). “). These three massive bureaucracies are implementing a pair of fifty-year-old statutes – the Clean Water Act (“CWA”) and the Endangered Species Act (“ESA”) – in perverse ways that protect neither the nation’s “navigable waters” , nor the species and subspecies listed as “endangered” or “endangered” by the USFWS.
When these three agencies and two statutes are combined, the result is a gigantic tangle of rules, regulations and licensing requirements. The result of that huge ball of red tape is a huge housing shortage and enormous obstacles to extracting energy from the ground and building ‘small, modular nuclear reactors’ (SMRs) that will power this country for centuries to come. and perhaps even further.
TRUMP COULD INITIATE A HOUSING BOOM by Ending ‘Endangered Species’ Scam
It is certainly possible for the new Trump teams at the Departments of Defense and Interior and the Environmental Protection Agency to issue clear and precise guidance on a regulatory package needed to cut the five-decade-developing Gordian knot that these agencies and laws have caused. and to do so on January 22, 2025. But it would still take at least a month to draft a proposed rule and two months to publish, and another three months to gather comments and finalize rule drafting — and then opponents’ lawsuit of progress for people would begin. The new leadership should begin the process of ordering a “national Section 10(a) permit” to take all listed species upon payment of a significant fee, combined with a national Section 404 permit when such species are on or located near “jurisdictional waters”. of the country, along with a mandate that the EPA will not increase any Section 10(a)/404 permits issued under the bureaucracy-killing new rule. Congress could and should act faster.
The early 2025 budget reconciliation process provides a means for Congress to direct that the ESA and the CWA be amended to provide that, notwithstanding any prior rules, regulations, or judicial decisions, the USACOE, EPA, and USFWS will issue a national decision within 60 days. Section 10(a)/404 permit that will be available to any private landowner for the “expropriation of an endangered species or its critical habitat” upon payment of a fee of $10,000 per acre of occupied habitat affected or a fee of $1,000 per hectares of uninhabited but designated “critical habitat” necessary for the proposed development. Because such a national ‘bureaucratic escape provision’ in the budget will result in a huge influx of funds – intended for the acquisition of habitats at the direction of the Minister of the Interior – a bill will be introduced that will prohibit the ‘expropriation’ of the species or subspecies and its consequences. to the “waters of the United States” will fit within the reconciliation process. That same trailer statute could eliminate the applicability of the “citizen status” provisions of the ESA and CWA, as well as those in the National Environmental Policy Act (NEPA), while depriving the EPA of what always seems to be “elevation” authority over permits . used by that agency to convert seemingly endless bureaucratic processes into actual ‘to infinity and beyond’ paper hunting.
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If you’ve read this far, you’ve gone through five paragraphs of a translation of “bureaucrats” that is as close to layman’s language as possible. The handful of lawyers representing landowners in these cases – I’m retired, but the ranks of actually competent species/wetlands attorneys allow are very small – are nodding. It would take a day or two to draft the liberating language for the budget reconciliation process. And the productivity gains would be enormous. And almost immediately.
Laypeople should ask themselves, “But what about the poor endangered species?” and “Who keeps the water clean?” Those are legitimate questions, and their answers are simple: the vast majority of “threatened or endangered species” designated by the USFWS are not, in fact, “threatened or endangered,” and the ACOE regulates dry riverbeds that trickle every few years , despite being repeatedly instructed not to do so by the United States Supreme Court. The new statute would simply return federal bureaucrats to their positions in 1970 before the first haphazard statutes were drafted, while allowing the collection of the fees necessary to actually purchase and preserve land needed to protect the truly endangered to allow animal species to thrive.
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There are effective ways to protect truly endangered species and to protect rivers and wetlands that physically border those rivers. But the CWA and ESA do not do those things as they are currently interpreted and administered. Instead, they function as full-employment laws for bureaucrats, biologists, consultants, and lawyers.
At a time when AI could quickly produce not only a map of land that needs to be acquired to provide the most biological diversity for the money, the existing absurd and Jerry-built maze of federal permits is having a ‘repeal and replace’ moment necessary. It should be in February and March.
FILE – Former Republican presidential candidate Donald Trump looks at a video screen during a campaign rally at the Salem Civic Center, in Salem, Virginia, Nov. 2, 2024. (AP Photo/Evan Vucci, File) (AP Photo/Evan Vucci, File)
Both paths – the regulatory and statutory– should be pursued, but the most important truth is that there is no reason that the dysfunctional laws Congress passed over fifty years ago cannot be repealed or amended by this new Congress. If we want young people to be able to buy starter homes and for renters not to be burdened by the apartment shortage that plagues so many zip codes, we need to build, build, build housing units, while at the same time embracing “drill baby drill.” .” Both can be done with extraordinary benefit to the environment but at high costs for the sinecures created by the administrative state.
The enormous energy needs of the new technologies can also be met, and quickly, but only if Congress clears a path for the SMRs out of the forest of absurd rules and regulations built up over half a century of relinquishing property rights and economic growth. to nameless, faceless little tyrants from obscure agencies. The vast majority of Americans want a housing and energy boom, not full employment for the federal government.
Hugh Hewitt hosts “The Hugh Hewitt Show,” heard weekdays from 6:00 to 9:00 a.m. ET on the Salem Radio Network, and simulcast on the Salem News Channel. Hugh is waking up America on over 400 affiliates across the country, and on all streaming platforms where SNC can be seen. He is a frequent guest on Fox News Channel’s roundtable hosted by Bret Baier weekdays at 6:00 PM ET. Hewitt, a son of Ohio and a graduate of Harvard College and the University of Michigan Law School, has been a professor of law at Chapman University’s Fowler School of Law since 1996, where he teaches constitutional law. Hewitt launched his eponymous radio program from Los Angeles in 1990. Hewitt has appeared regularly on every major national news television network, hosted television programs for PBS and MSNBC, written for every major American newspaper, authored a dozen books and moderated about two dozen Republican newspapers. candidate debates, most recently the November 2023 Republican presidential debate in Miami and four Republican presidential debates in the 2015-2016 cycle. Hewitt focuses his radio program and column on the Constitution, national security, American politics and the Cleveland Browns and Guardians. Hewitt has interviewed tens of thousands of guests during his four decades on the air, from Democrats Hillary Clinton and John Kerry to Republican Presidents George W. Bush and Donald Trump, and this column previews the top story that will drive today are behind his radio/TV program.
