WOTUS 2.0

I will call this column WOTUS 2.0. Regular readers will recall my column in the November issue of this publication which discussed WOTUS and the current case before the Supreme Court commonly known as “Sackett”, named after the family in Idaho who took the Environmental Protection Agency (EPA) to court. The EPA claimed they needed a permit to build a house because there was a wetland on their property. The agency said this was a water of the United States (WOTUS) and thus subject to Clean Water Act (CWA) jurisdiction. The Supreme Court has taken the case under submission and will likely render an opinion before June of this year.

You might ask, “Why is he writing about this so soon again..?”

On December 29, 2022, the EPA issued a new WOTUS rule redefining once again what they believe is a WOTUS. This new rule plus a decision by the Supreme Court is the fourth time in sixteen years property owners and users in the United States including ranchers and farmers have to figure out if they have a jurisdictional water on their property. The reason such an evaluation is necessary is because if you do have a WOTUS on your land that land is subject to regulation and control by a Federal Government Agency.

Now no one , including myself, is arguing against the clean water goals of the CWA. We all want clean and available water for human needs and purposes. However, several concerns are abundantly clear from the recent actions of the EPA. Why did they rush to promulgate a rule knowing the Supreme Court would be deciding the issue of what constitutes a WOTUS within six months of the publishing of the rule?

Furthermore, the new rule makes no distinction for what is jurisdictional and what common sense says is not subject to EPA control. Let me give some examples. The original law- the CWA, said interstate waters such as the Snake River in Idaho, the Carson River in Nevada and the Virgin River in Utah are waters of the United States. These rivers flow through at least two states and two of them are tributaries of larger rivers, the Columbia and the Colorado. There are other obvious examples. Lake Michigan and Lake Tahoe are clearly waters that need CWA protection. Smaller intra state streams like the Sacramento River in California are a substantial body of water anyone would want to protect from degrading.

But think of a vernal pool within twenty-five miles of the Sacramento River in the foothills of the Sierra Nevada. What is a vernal pool? It is a slight depression in an oak tree studded grassland which is full of water from winter rains in the spring but dry the rest of the year. These pools provide water for wild life and livestock for a part of the year, but for the most part, have no physical connection to a water of the United States. Under the new EPA rule these water features are not excluded from the jurisdiction of the EPA. Therefore, if the rule is upheld by a future Supreme Court, the EPA could have jurisdiction and control of the use of the land on which the vernal pool is located. Throughout the Great Basin there are ephemeral streams which have a short seasonal flow and which are located hundreds of miles from waters of the United States. These could become jurisdictional under the new rule.

The rule does have some so-called agricultural exclusions such as irrigation features and farm ponds. However, there is enough ambiguity that even these agricultural necessities could be found to be under the jurisdiction of the EPA.

Generally, an agency’s regulatory power comes from the plain meaning of a statute that enables that power. When the agency interprets ambiguous language to give it rule- making authority that doesn’t exist from that plain reading, higher courts have stripped the rules from the agencies if they cannot show clear congressional authorization to make rules regarding major questions of national significance.

The history of creating a definition of WOTUS since the passage of the CWA in 1972 is interesting. I have read there have been thirteen to sixteen different definitions used by the EPA in that fifty year period of time. What is ironic about the Sackett case is no matter what definition the Supreme Court lands on in its decision it will most likely conflict with the new rule’s definition which will mean that the deference usually granted agencies by the courts will not be in play and the EPA will have to amend its rule. Because there has been so much controversy in the creation of various definitions of water of the United States by the agency and the courts, I think the Supreme Court will look for explicit statutory authority and not give deference and implicit delegation to the EPA in deciding what should be a water of the United States.

In the meantime, people like farmers and ranchers who must operate under the rules will be as confused as ever and unfortunately will not be in compliance with either the EPA definition or the Supreme Court’s definition. Organizations such as the National Cattlemen’s Beef Association have just filed suit against the EPA asking the court to temporarily restrain the EPA from implementing the rule.

They are also disputing the EPA authority pending a decision from the Supreme Court. We may finally see some clarity on this issue this next year which will give some stability to ranchers to decide if they have a water feature on their land that is subject to EPA jurisdiction.

Let’s hope and I’ll see you soon.