What is WOTUS? Supreme Court to review controversial water rule

A neighborhood lot in Idaho. Farmland in California. Western properties are up against a controversial water rule that the Supreme Court must review.

Will this change anything?

Mike and Chantell Sackett bought vacant land to build their dream home in a mostly built-up subdivision in northern Idaho, but were told by the feds that their property was a wetland and subject to authority. of the Clean Water Act.

“The Sacketts’ vacant lot is adjacent to Priest Lake, which is 300 feet away and behind two rows of houses,” said Tony Francois, an attorney at the Pacific Legal Foundation, which sued the couple in 2008.

Francois said the US Environmental Protection Agency and the Army Corps of Engineers have interpreted a rule, called Waters of the United States, or WOTUS, to extend their authority far beyond what is reasonable due to an earlier Supreme Court ruling from 2006 that provided little to no clarity. On the question.

In that case, the Supreme Court was trying to answer the question of how closely a body of water must be connected to a navigable river or lake for the Clean Water Act regulations to take effect and at what point this water must be permanent. The case involving the Sacketts will test the issue again and is expected to be heard this fall.

Do regulators select monitoring?

In California, farmer Jack LaPant purchased 900 acres that had traditionally been cultivated for winter wheat for years. He planted winter wheat on the newly acquired land, then sold it to another buyer. The eventual new owner has planted an orchard.

Then the Army Corps of Engineers issued a cease and desist order to the new buyer and, five years after LaPant had taken ownership of the property, he was cited for destroying “vernal” swimming pools. .

Mike and Chantell Sackett bought a vacant lot in northern Idaho where they planned to build their dream home. The federal government has stepped in and claims the property is a wetland and falls under the Clean Water Act. They filed suit in a case that is expected to be heard by the US Supreme Court this fall.

Brian Feulner, Feulner Visual Media

“I had farmed the property exactly as it had been,” he said, adding that he had researched several entities, including the Farm Service Agency and the Soil Conservation Service, to find out. ensure that he obeys the law.

“I met them, told them what my plans were and they agreed that if I did exactly what had happened in the past, as far as farming goes, I wouldn’t have any problems.” He now faces millions in federal fines.

WOTUS has been a game of ping-pong, like so many issues that depend on the presidential administration in power.

With no clear line for a way forward in the 2006 ruling, critics said it was applied on a case-by-case basis – and by extension anything ‘wet’ can be regulated, according to Paul Larkin , Senior Legal Researcher at the Heritage Foundation

Significant or unachievable environmental progress?

An Obama-era rule released in 2015 following that Supreme Court ruling has been hailed by environmental activists and conservation groups as the biggest and most impressive overhaul of the Clean Water Act in 42 years. .

Groups like the Theodore Roosevelt Conservation Partnership said Obama’s rule clarified federal jurisdiction over seasonal streams – which involve 60% of waterway miles in the United States – and was essential for the region. Prairie Pothole home to 70% of the ducks in North America.

Proponents of WOTUS in its current form say it is intended to protect the benefits of water for all people in the United States to enjoy, not just individual homeowners.

The rule, however, was derided by states, private owners, and ranchers as a regulatory override that extended the meaning of words like navigable, near, or adjacent.

“When you define the waters of the United States to include dry creek beds, drainage ditches and puddles – and that’s not really an editorial comment – it has a literal impact on how you use your land nationwide,” commented former EPA Administrator Scott Pruitt. on tour in Utah.

The rule was troubling to Utah farmers and ranchers because it extended jurisdiction to any low point where water collects, including farm irrigation ditches and fields, ephemeral drainages, ponds livestock watering facilities on private and public lands, as well as isolated wetlands.

In 2019, Utah and other states successfully blocked the Obama-era rule with a court-ordered injunction.

When President Donald Trump took office, he pledged to roll back the previous version of the rule and implement one under the EPA that wasn’t as restrictive.

That of course changed when President Joe Biden took office.

The Pacific Legal Foundation argues that the WOTUS rule under the Clean Water Act should not be so onerous that the average person cannot understand its meaning. In fact, he says, the onus is on the government to prove what the playing field is, not the other way around.

“The obligation is on the government, on the legislature, to lay down laws that are perfectly clear so that the average citizen, the average trucker, the average bus driver, the average worker at the grocery store can look at this term and apply it in real life,” Larkin said.

The foundation argues that under its current application, the WOTUS rule requires a person with “doctoral” expertise to determine whether it applies to a particular property if it connects to, or is near or adjacent to a regulated waterway.

“A term has to be clear enough that it can be applied in real life by real people, and as we said, that requires not only the intervention of lawyers, but also geologists, hydrologists, etc. have skills that far exceed what the average person has,” Larkin said.

What bothers you?

The foundation compared the vague application of the WOTUS rule to a 1917 U.S. Supreme Court decision that struck down a Cincinnati ordinance that said it was a crime to “annoy” passers-by.

“Now there are a lot of things that any of us could think of as boring. Like playing loud music in an elevator or talking too loudly in an elevator. But that term can mean different things to different people and the Supreme Court has ruled it unconstitutionally vague,” Larkin said.

The foundation said that over the years, federal agencies have used “wetlands” as an oxymoronic term to describe land with wet characteristics.

Francois said WOTUS is becoming problematic especially in the West where some streams don’t flow year-round, or are intermittent, or actually have ephemeral drainages that only have water when it’s there. is raining.

Then there is the issue of ditches.

He said it’s one thing to think about the Clean Water Act and its scope of “navigable waters” such as the Mississippi and Missouri, but it’s another thing to think about its application in d other circumstances.

“These rivers flow all year round, that’s one thing. But the idea that a farmer’s drainage ditch to drain his field or a city ditch along a road is somehow part of a network of tributaries to navigable waters in the sense that the federal government has some sort of regulatory power over them is quite implausible.

Larkin said it’s not that the EPA or the Army Corps of Engineers are acting in bad faith, but rather that they are using WOTUS as a tool to regulate pollution when it was not an authority envisioned by the Congress.

If members of Congress were asked about WOTUS’ intention to impact the Sacketts’ dream home plot or LaPant’s farmland, Larkin says the answer would be clear.

“Of course not.”

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