{"id":260333,"date":"2023-06-03T12:51:32","date_gmt":"2023-06-03T10:51:32","guid":{"rendered":"https:\/\/climatescience.press\/?p=260333"},"modified":"2023-06-03T12:51:35","modified_gmt":"2023-06-03T10:51:35","slug":"epas-wotus-scheme-deep-sixed-by-supreme-court","status":"publish","type":"post","link":"https:\/\/climatescience.press\/?p=260333","title":{"rendered":"EPA\u2019s WOTUS scheme deep-sixed by Supreme Court"},"content":{"rendered":"\n
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From\u00a0CFACT<\/a><\/p>\n\n\n\n

By\u00a0Bonner Cohen, Ph. D.<\/a><\/p>\n\n\n\n

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In one of the most consequential judicial decisions in recent memory, the U.S. Supreme Court May 25 significantly limited the Environmental Protection Agency\u2019s (EPA) authority to regulate wetlands under the Clean Water Act (CWA).<\/p>\n\n\n\n

Ending decades of regulatory uncertainty over what was meant when the 1972 CWA authorized EPA (and the U.S. Army Corps of Engineers) to regulate discharges into \u201cnavigable waters of the United States\u201d (WOTUS), the High Court \u2013 in a decision written by Justice Samuel A. Alito \u2013 provided clarity over how non-navigable waters, specifically wetlands, are to be treated.<\/p>\n\n\n\n

With the United States containing hundreds of millions of acres of wetlands \u2013 some of them permanently wet, others ephemeral, but none of them navigable \u2013 the unresolved question of EPA\u2019s regulatory authority has hung like a sword of Damocles over farmers, ranchers, and other landowners. If EPA determined that farmer Brown\u2019s agricultural operations posed a threat to nearby wetlands \u2013 even if those wetlands had no connection, or only a tenuous connection, to navigable water \u2014 he could be slapped with fines so stiff that the survival of his farm was in jeopardy.<\/p>\n\n\n\n

In fact, you didn\u2019t even have to be a farmer to be put through the EPA WOTUS ringer. The case that triggered the May 25 ruling involved Michael and Chantell Sackett, who set out 16 years ago to build a home on their 0.63-acre lot near Priest Lake, Idaho. The couple had just started backfilling operations when EPA agents showed up demanding they cease construction or face fines of up to $40,000 a day. Their otherwise bone-dry property\u2019s only connection to a wetland and eventually to navigable water was a subsurface stream that connected to a ditch, which connected to a creek, which flowed into Priest Lake, 300 feet from the Sacketts\u2019 property line.<\/p>\n\n\n\n

WOTUS and the Rise of the Administrative Regulatory State<\/p>\n\n\n\n

The Sacketts\u2019 absurd situation shows what can happen when the language of laws is so vague that agencies charged with enforcing them believe they can interpret their writ any way they wish. This has been a boon to the administrative regulatory state, which has thrived in recent decades because unelected and unaccountable bureaucrats wind up writing rules and regulations that have the force of law behind them.<\/p>\n\n\n\n

After the Supreme Court in two decisions \u2013 from 2000 and 2005 \u2013 failed to deliver regulatory clarity, the Obama and Biden administrations issued rules giving EPA broad authority to regulate wetlands. But federal courts threw out key sections of the Obama rule, and the Trump administration issued its own rule in 2020, which limited the scope of EPA\u2019s authority. The Biden White House scrapped the Trump rule and issued its own rule in January of this year. But the Biden rule is now a dead letter after the High Court\u2019s May 25 ruling.<\/p>\n\n\n\n

\u201cWe hold that the CWA extends to only those wetlands with a continuous surface connection to bodies that are \u2018waters of the United States\u2019 in their own right, so that they are \u2018indistinguishable\u2019 from those waters,\u201d Alito wrote for the court.<\/p>\n\n\n\n

\u201cRegulation of land and water use lies at the core of traditional state authority,\u201d Alito explained. \u201cAn overly broad interpretation of the CWA\u2019s reach would impinge on this authority. The area covered by wetlands alone is vast \u2013 greater than the combined surface area of California and Teas. And the scope of EPA\u2019s conception of \u2018waters of the United States\u2019 is truly staggering.\u201d<\/p>\n\n\n\n

Alito also laid to rest then-Justice Anthony Kennedy\u2019s ill-defined test of a \u201csignificant nexus\u201d to a navigable water to determine whether EPA could regulate a wetland.<\/p>\n\n\n\n

\u201cBy the EPA\u2019s own admission, nearly all waters and wetlands are susceptible to regulation under this test, putting a staggering array of landowners at risk of criminal prosecution for such things as moving dirt,\u201d he pointed out.<\/p>\n\n\n\n

The court further circumscribed EPA\u2019s and the Corps\u2019 power by \u2014 for the first time \u2014 drawing a clear distinction between wetlands that \u201cadjoin\u201d a covered water and those which are merely \u201cadjacent\u201d to it. Regulatory authority extends to the former but not to the latter.<\/p>\n\n\n\n

The 1972 CWA was designed to ensure that the nation\u2019s waterways were clean, and it has been largely successful in achieving that goal. But, thanks to vague language relating to the regulation of non-navigable waters, the statute was hijacked and transformed into a means to regulate land use. Both the Obama and Biden administrations sought to use the uncertainty over the scope of EPA\u2019s regulatory authority over WOTUS to impose a scheme for federal zoning of untold millions of acres of private land. The Supreme Court has now blocked that effort.<\/p>\n\n\n\n

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