Dave Dickey
Now that the Obama administration has triumphed in its bare-knuckle fight with Congress over new rules that redefine the Clean Water Act, it will be up to the courts to ultimately decide whether the Environmental Protection Agency and the United States Army Corps of Engineers are overreaching their jurisdiction and mission.
EPA administrator Regina “Gina” McCarthy and her merry band of rule-makers want to exchange the phrase “navigable waters” with “waters of the United States” in the Clean Water Act.
The net effect of the change would be to vastly expand EPA authority.
The U.S. Supreme Court in Rapanos v. United States defined navigable waters to include lakes, bays, rivers, and other relatively large bodies of water.
The EPA’s rule change would allow the agency to regulate — if taken to the extreme – wherever water pools, including farmland drainage ditches, seasonal streams, tributaries and even puddle-like depressions.
The EPA claims it has no intention of requiring farmers to get federal permits to control agricultural chemical runoff, but the story of Wyoming farmer Andy Johnson is suggestive of just how far the EPA might go in defining what waters it has jurisdiction over should WOTUS prevail.
As reported in the Deseret News:
The EPA maintains Johnson broke a law by failing to obtain a federal permit before constructing the pond. The EPA requires projects on the “waters of the United States” to receive the Army permit, the Associated Press reported. The EPA’s logic for deeming the 2-foot-wide, 6-inch-deep section of the Creek a part of the “waters of the United States” goes as follows: Six Mile Creek is a tributary of the Blacks Fork River, which is a tributary of the Green River. Because of Six Mile Creek’s relationship to the larger waterways, the EPA claims the creek is subject to the Clean Water Act.
It doesn’t take much to imagine EPA applying this same sort of logic to farmland drainage ditches, requiring farmers to spend tens of thousands of dollars to obtain permits on their own land.
Virtually no one in agriculture thinks this is a good idea.
As a result, it has become a legal quagmire.
In all, 71 plaintiffs – including 31 states – have challenged the rule in nine district courts.
Any day now, the U.S. Sixth Circuit Court of Appeals will decide whether it has jurisdiction over all those challenges to the waters of the United States rule.
The outcome is unclear.
During its Dec. 8 hearing, the court expressed some doubt whether existing law gave it jurisdiction, while also acknowledging that the scope of the case begs a singular court to rule in the spirit of national uniformity.
A lot is at stake with the Sixth Circuit court’s decision because it has also issued a national temporary injunction preventing the rule from going into effect pending its jurisdiction ruling.
Should the Sixth Circuit find that the Court of Appeals has exclusive jurisdiction, the stay would remain in place.
If it decides otherwise, 37 states would immediately be impacted by the EPA WOTUS rule.
But it gets even more complicated.
Other circuit courts are also hearing challenges.
The Eleventh Circuit is considering an appeal of several southern states that want the issue decided in district courts and not federal appellate courts.
Ultimately, there could be a split in the courts requiring the Supreme Court to step in.
By now, you have figured out that all of this won’t be decided any time soon, and probably not until after President Barack Obama leaves office.
In the meantime, EPA looks “forward to vigorously defending the merits of the Clean Water Rule, which the agencies continue to believe is fully consistent with the law and based on the best available peer-reviewed science.”
About Dave Dickey
Dickey spent nearly 30 years at University of Illinois at Urbana-Champaign’s NPR member station WILL-AM 580 where he won a dozen Associated Press awards for his reporting. For the past 13 years, he directed Illinois Public Media’s agriculture programming. His weekly column for Big Ag Watch covers agriculture and related issues including politics, government, environment and labor. Email him at dave.dickey@investigatemidwest.org.
This column reflects the writer’s own opinions and not those of Big Ag Watch.