Johnson, GOP senators challenge Biden’s WOTUS rule
Supreme Court set to rule on federal authority over navigable waters
I’ve written a good bit here about Sackett v EPA, a U.S. Supreme Court case featuring an Idaho couple who has been blocked by the Environmental Protection Agency (EPA) since 2007 from building a house on their property. In the case, the EPA and the U.S. Army Corps of Engineers say they have jurisdiction over wetlands on the Sacketts’ property as “waters of the United States” and construction of the house would run afoul of its wetland protections.
The decision is expected by June, and it likely will go a long way in determining federal authority over navigable waters.
But that hasn’t stopped the Biden administration from making its own determination about federal jurisdiction over navigable waters—by their rule, the federal government controls it all, as well as any water remotely in the same area. So, just as President Biden and his entire administration jumped the shark quickly after his inauguration, the administration is wasting no time in jumping the Supreme Court’s decision.
It’s a wonder why because they just might be jumping the shark again, or falling right into its mouth. If the court negates the administration’s definition, that could nullify whatever implementation work they do between now and June. Maybe Joe Biden is an optimist. Maybe the bureaucrats have a plan.
Because the administration is moving forward with implementation—the administration released the final rule December 30; it will take effect, unless blocked, on March 23–this past week Republican senators launched a formal challenge to the rulemaking effort. Wisconsin Sen. Ron Johnson joined all other Republican senators in the challenge, being made in the form of a Congressional Review Act (CRA) joint resolution of disapproval. It is obviously not expected to pass the Democratic-controlled Senate.
The Biden rule, announced in December, repeals the Trump-era Navigable Waters Protection Rule (NWPR), and changes the definition of so-called waters of the United States (WOTUS) in a way that will expand federal regulatory authority and threaten the rights of landowners.
Specifically, the new rule adopts a “significant nexus” test for determining when land or a water feature is subject to federal regulation under the Clean Water Act. In essence, the federal government can claim jurisdiction not only over navigable waters but water bodies that the EPA determines have a substantial connection to those waters.
What the revised WOTUS rule does is substantially expand federal jurisdiction over streams and wetlands, including on private property, and encroaches on states’ authority to manage land and water within their respective borders. And, by changing the definition, the administration is creating regulatory uncertainty and adding a host of bureaucratic costs to infrastructure, transportation, and energy projects.
More than just added costs and uncertainty are coming, though. What is certainly coming is a regulatory hammer to the head. To consider just how the bureaucrats will determine whether a wetland has significant nexus to a navigable water, we need to look no further than the aforementioned Sackett case.
Here’s how the government made the determination that wetlands on the Sackett property significantly connect to Priest Lake, a navigable water. First, it should be noted that the property contains no surface water connection to any stream, creek, or lake, or to any other water body, mainly because there is no surface water on the property, though the EPA has delineated what it says are wetlands. Assuming they are wetlands, which the Sacketts’ contest, the EPA says they are connected to other wetlands across the street on another property, separated by a 30-foot-wide paved road. The EPA then says those latter wetlands are connected to a man-made non-navigable ditch, which in turn is connected to a non-navigable creek, which in turn is connected to Priest Lake.
Think of it this way. You may be separated by only six degrees (or less) from Kevin Bacon, and everybody else in the world, including me, but is six degrees a significant nexus? I may be connected to a friend of a friend of a friend of a cousin of a friend of one of your parents, but is that a significant nexus? Precisely.
The significant nexus test gives federal bureaucrats control over determining when temporary, tributary, and other upland waters are regulated, and, as Johnson put it last week, makes farmers, developers, builders, and other landowners more reliant on the shifting interpretations of the EPA and the U.S. Army Corps of Engineers.
Republican Sen John Thune of South Dakota, one of the leaders of the resolution, accurately calls the rule a “thinly thinly veiled land grab”:
Like President Obama before him, President Biden is trying to greatly expand the reach of the federal government into the lives of farmers and ranchers. Opening up nearly every body of water to federal jurisdiction would be a nightmare for property owners and producers across the country.
Not having the EPA’s back …