In Waters of the U.S. case, property rights, power of bureaucracy will be tested
Move over pandemic: Now the federal government wants to lock down your water
Don’t be surprised that, come spring and there is some heavy rain, don’t be one bit surprised to look out your kitchen window and see government agents splashing happily around in your backyard puddles.
I’m not serious, of course, at least not completely. Not completely because at this very moment Biden bureaucrats are busy redefining water. Specifically, redefining “waters of the United States,” or, put more practically, defining those waters within the United States over which the federal government has jurisdiction and control.
And if they get their way, the government definitely wants to know about the puddles in your yard, and a lot more about any water on your property. Actually, just about any property that is sometimes wet will be in the crosshairs.
Unless the United States Supreme Court stops them, and the court now has the chance to do just that. In what could be a landmark case concerning the power of the administrative state, not to mention the right to use your property, the high court this week—in a surprise move—agreed to hear the case of an Idaho couple who has been blocked by the U.S. Environmental Protection Agency (EPA) since 2004 from building a house on their property because of wetlands that the EPA and the U.S. Army Corps of Engineers claim control over as “waters of the United States.”
The thing is, the lot contains no surface water connection to any stream, creek, or lake, or to any other water body for that matter, throwing into question just what constitutes so-called “waters of the United States.” Sure, the wetlands are landlocked and disconnected, but such paltry details never stop the bosses of the bureaucracy.
Under a new rule proposed by the Biden administration—and under a similar pre-2015 EPA interpretation that ensnared Michael and Chantell Sackett, the Idaho couple—that regulation would be sweeping. Critics such as the U.S. Farm Bureau correctly say the new rule would greatly expand the federal government’s regulatory reach over private land use, giving it authority over ditches, ephemeral drainages and low spots on farmlands and pastures, and potentially impacting everyday activities such as plowing, planting, and fence-building in or near those areas.
Not to mention, as the Sacketts found out, the government could have regulatory authority over construction of a house on residential property that has no navigable waters, and even over commercial and residential development in entire communities.
The case is a complicated one, but essentially the Supreme Court now has an opportunity after a fractured earlier decision in 2006 and the political tug of war that followed to finally define the scope of the nation’s Clean Waters Act and to delineate once and for all just what waters are subject to federal regulation.
I have included a short appendix at the end revisiting the 2006 decision known as Rapanos, but for starters the Biden rule seeks to replace a rescinded Trump administration rule that generally narrowed and limited federal regulatory authority to traditionally navigable waters, territorial seas, certain surface waters that contribute surface flow to traditionally navigable waters, and wetlands that physically touch other jurisdictional waters.
In other words, the Trump rule kept the federal government in its lane, restricting its jurisdiction to truly national, navigable waters, and letting states manage all other waters within their borders.
The Biden rule would attempt to impose a much broader definition, similar to that proposed unsuccessfully by President Barack Obama, that would sweep into federal jurisdiction not just relatively permanent and navigable waters but more seasonal tributaries and wetlands close to navigable waters, that is, those with a so-called “significant nexus” to navigable waters, including those with only seasonal flows.
To grasp the magnitude of the change, consider that about 60 percent of stream miles in the U.S. only flow seasonally or after rain. Many of those “waters,” and other “waters” like them, would now be under federal control. The Biden rule, then, would add up to a mind-boggling expansion of authority over one of the most fundamental requirements of life—water—and, more than that, it would victimize the states, whose use and management of waters and lands they own directly would now be subject to greater federal regulation.
All of which brings us back to the Sacketts of Idaho. Under the Trump definition, the EPA would have no say over their land; under the new Biden rule, as under a previous EPA interpretation, it would.
At the very least, the Supreme Court is likely to give consistency to the term “waters of the U.S.,” or WOTUS. Since the 2006 Supreme Court’s chaotic decision, various lower courts and agencies have interpreted the Clean Water Act in different ways, ensnaring some people like the Sacketts but not others. Then, too, the case goes to the heart of an even broader question: Can government agencies re-interpret statutes to expand their authority beyond what Congress and the Supreme Court have granted?
Let’s take a look at those questions but first the long-running saga of the Sacketts.