A neighborhood lot in Idaho. Farmland in California. Properties in the West are running up against a controversial water rule that the Supreme Court is due to revisit.

Will it change anything?

Mike and Chantell Sackett bought a vacant lot to build their dream home on in a mostly built-out subdivision in northern Idaho only to be told by the federal government their property was a wetland and subject to the authority of the Clean Water Act.

“The Sacketts’ vacant lot neighbors Priest Lake, which is 300 feet away and behind two rows of houses,” said Tony Francois, an attorney with the Pacific Legal Foundation, which sued on behalf of the couple in 2008.

Francois said the U.S. Environmental Protection Agency and Army Corps of Engineers have construed a rule, called Waters of the United States, or WOTUS, to expansively extend their authority beyond what is reasonable due to an earlier 2006 Supreme Court decision that gave little to no clarity on the issue.

In that case, the Supreme Court was trying to answer the question of how closely connected to a navigable river or lake a body of water has to be for Clean Water Act regulations to kick in and how permanent must that water be. The case involving the Sacketts will again test the issue and is slated to be heard this fall.

Are regulators cherry-picking oversight?

In California, farmer Jack LaPant purchased 900 acres that had been for years traditionally farmed for winter wheat. He planted winter wheat on the newly acquired land and then subsequently sold it to another buyer. The eventual new owner planted an orchard.

Then the Army Corps of Engineers issued a cease-and-desist order to the newest buyer and, five years after LaPant had owned the property, he was cited for destroying “vernal” pools.

Mike and Chantell Sackett bought a vacant lot in northern Idaho where they planned to build their dream home. The federal government intervened and claims the property is a wetland and falls under the Clean Water Act. They have filed suit in a case that is slated to be heard by the U.S. Supreme Court this fall. | Brian Feulner, Feulner Visual Media

“I had farmed the property exactly the way it had been farmed,” he said, adding he had done research with multiple entities including the Farm Service Agency and the Soil Conservation Service to make sure he was within the law.

“I met with them, told them what my plans were and they agreed if I did exactly what had happened in the past, as far as farming, I wouldn’t have any problem.” He now faces millions in federal fines.

WOTUS has been a game of pingpong, like so many issues that hinge on what presidential administration is in power.

With no bright line for a path forward in the 2006 decision, detractors said it was applied on a case-by-case basis — and by extension anything “wet” can be regulated, according to Paul Larkin, senior legal research fellow with the Heritage Foundation

Significant environmental progress or unworkable?

An Obama-era rule issued in 2015 as an outgrowth of that Supreme Court decision was lauded by environmental activists and conservation groups as the most significant and impressive overhaul of the Clean Water Act in 42 years.

Groups like the Theodore Roosevelt Conservation Partnership said the Obama rule clarified federal jurisdiction over seasonal streams — which involves 60% of the stream miles in the United States — and was critical for the Prairie Pothole region hosting 70% of the ducks in North America.

Supporters of WOTUS as it stands says it is meant to protect the benefits of water for all people of the United States to enjoy, not just individual property owners.

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The rule, however, was derided by states, private property owners and ranchers as regulatory overreach that stretched the meaning of words like navigable, near or adjacent.

“When you define waters of the United States to include dry creek beds, drainage ditches and puddles — and that is not really an editorial comment — that impacts literally how you use your land all over the country,” commented former EPA administrator Scott Pruitt while on tour to Utah.

EPA administrator in Utah to get input on water rule, other regulations

The rule was troubling for Utah’s farmers and ranchers because it extended jurisdiction to any low spot where water collects, including farm irrigation ditches and fields, ephemeral drainages, livestock watering ponds on private and public lands, as well as isolated wetlands.

By 2019, Utah and other states successfully blocked the Obama-era rule with a court-ordered injunction.

When President Donald Trump took office, he vowed to roll back the previous iteration of the rule and implement one under the EPA that was not as restrictive.

That, of course, changed when President Joe Biden took office.

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The Pacific Legal Foundation argues that the WOTUS rule under the Clean Water Act should not be so onerous that the ordinary average person cannot understand its meaning. In fact, it says, the burden is on government to prove what the playground rules are, not the other way around.

“The obligation is on the government, the legislature, to define the statutes that are perfectly clear so that the average person, the average truck driver, the average bus driver, the average person who works at the grocery store can look at this term and apply it in real life,” Larkin said.

The foundation argues that under its current application, the WOTUS rule requires someone with “doctoral” expertise to determine if it applies to a particular property if it connects to, or is near, or is adjacent to a regulated waterway.

“A term has to be sufficiently clear so that it can be applied in real life by real people, and as we have had said, this not only requires lawyers to become involved but geologists, hydrologists and the like — in other words, those who have skills that far exceed what the average person has,” Larkin said.

What’s annoying to you?

The foundation likened the vague application of the WOTUS rule to a 1917 decision by the U.S. Supreme Court that struck down a Cincinnati ordinance asserting it was a crime to “annoy” passersby.

“Now, there are a lot of things that each of us might think are annoying. Like playing music loudly in an elevator or talking too loudly in an elevator. But that term can mean different things to different people and the Supreme Court said it was unconstitutionally vague,” Larkin said.

The foundation said over the years, federal agencies have used “wetland” as an oxymoronic term to describe land with some wet features on it.

Francois said WOTUS becomes problematic particularly in the West where some streams don’t flow year around, or are intermittent, or actually feature ephemeral drainages which only have water when it rains.

Then there’s the matter of ditches.

He said it is one thing to think about the Clean Water Act and its purview of “navigable waters” such as the Mississippi and the Missouri rivers, but quite another to think about its application in other circumstances.

“Those rivers flow year round, that’s one thing. But the idea that a farmer’s drainage ditch to dry out his or her field or a city ditch alongside a road is somehow part of a network of tributaries to navigable waters in the sense the federal government somehow has regulatory authority over them is quite implausible.”

Larkin said it is not that the EPA or Army Corps of Engineers are acting in bad faith, but rather they are using WOTUS as a tool to regulate pollution when it was not an authority Congress had contemplated.

If members of Congress were queried about the intent of WOTUS to impact the plot for the Sacketts’ dream home or LaPant’s farmland, Larkin asserts the answer would be clear.

“Of course not.”