Still Muddying The Waters

In the June 21, 2014 issue of the Roundup, I wrote a column titled “Muddying The Waters.” It was about the Environmental Protection Agency (EPA) and the U.S. Army Corp of Engineers overreach in defining the Waters of the U.S. rule based on their interpretation of the Clean Water Act (CWA).

This proposed rule really was a concern for the agriculture and construction industries and local and state governments. Many responded to the EPA saying the proposed rule would redefine waters of the U.S. under the CWA based on a narrow opinion by Justice Anthony Kennedy in a 2006 Supreme Court decision saying an isolated water, like a stock pond or a ditch, doesn’t have to have a surface water connection to a downstream navigable water to be considered “waters of the U.S.” 

Justice Antonin Scalia wrote the plurality opinion on the case, and his opinion differed from Kennedy’s by saying the waters of the U.S. include only those relatively permanent, standing or continuously flowing bodies of water like streams, rivers and lakes. Justice Scalia specifically noted waters of the U.S. does not include channels that only hold water periodically and are only wetlands with a continuous surface connection to bodies of water representing waters of the U.S. 

The EPA and Corps of Engineers chose to base the final rule on the Kennedy opinion, and as one congressman later said, “Enough is enough with regard to federal overreach on U.S. farms and ranches. When the bureaucrats at the EPA decide to call a divot in the ground filled with rain a navigable waterway under the CWA, we know our federal government has run amuck.”

About 16 years have passed since the Supreme Court established the “significant nexus” test to determine whether certain land uses are subject to CWA regulations. Last year, the Ninth U.S. Circuit Court of Appeals affirmed the EPA’s conclusion regarding a wetland on an Idaho property does meet the significant nexus test. The case has been appealed to the Supreme Court, and the court heard oral arguments on Oct. 3.

A number of people and lawyers agree the Idaho appeal to the Supreme Court is an excellent vehicle for reexamining the legal precedent, since the alleged wetland on the property is surrounded by barriers to the “navigable waters” of nearby Priest Lake. 

The couple who own the land have been fighting the government since 2007. They wanted to build a house on their land which had a wetland on it. The EPA told them they needed a permit because of the wetland. The EPA ordered the construction stopped and threatened huge fines if they didn’t obtain the permit, which usually takes around two years and may cost up to $250,000.

I realize the conservative majority on the Supreme Court should help with the case. The Supreme Court ruled back in June the EPA overstepped its authority under the Clean Air Act to slash planet-warming emissions from power plants, which should also help.

Around 50 years ago, when Congress passed the CWA, legal minds mentioned the intent was never to overreach at this level. Seven administrations have let the EPA run away with bad decisions. We hope and pray this is the end of the overreach.