Fifty years is a long time and looking back on events during my lifetime, it is a wonder how quickly the years add up. We all obviously experience many things of a personal nature and collectively as a country, a society, and a human race which impact the way we live and conduct our business and personal affairs. Specifically, when it comes to issues impacting the way ranchers operate to provide food for our country and the rest of the world, Congress and the Federal Agencies have a way of listening to the loudest voice rather than the voices with the most experience backed by common sense and science.
One of those collective experiences which cannot seem to get out of the news and about which I cannot seem to stop writing is the Clean Water Act of 1972 (CWA). I am old enough to remember the Ohio River that was literally on fire in 1969 and the Santa Barbara Channel oil spill in the Pacific Ocean waters off the coast of California around that same time. These events are thought by many to believe were the catalyst which provided the consensus in Congress to pass this act. A fish count in the Ohio River at the time of the fiery water revealed no live fish in the river. Today 70 species thrive in the river and there are no oil covered birds on the beaches of Santa Barbara. So, in some sense the CWA has been a success.
The purpose of the CWA was to make the nation’s waters fishable and swimmable. Who can seriously argue that we don’t all want such water? The Act gave jurisdiction for enforcement to the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps). One of the requirements under the Act is industries that have the potential to pollute Waters of the United States (WOTUS) and sewage treatment plants must get permits which conditionally limit releases into those waters. By all accounts, the CWA has been very successful in cleaning up our polluted waters. But, as in all things legislative, the devil is always in the details.
One of those important details is defining a WOTUS for the EPA to have jurisdiction to regulate waters under the CWA. Along the way, in general, farming and traditional agricultural practices such as flood irrigation and farm ponds were exempted from jurisdiction for regulation by the EPA. Early in the discussion, a WOTUS was a water that was “navigable”. This decision was further tested by deciding whether a water course was used in interstate commerce. This led to interesting conclusions. For instance, the Carson River in Eastern California and Western Nevada was navigable because pine trees harvested in the high Sierra mountains were formed into huge rafts which were floated out of the mountains to Carson Valley during the very brief Spring high water flows of melting snow which sometimes only lasted for a few weeks. These logs were used in the Comstock Load mines in Virginia City. The river was navigable because the logs were interstate commerce.
Fast forward about a century and the Supreme Court of the United States became involved in cases which questioned the EPA interpretation of jurisdictional waters under the CWA. The term “adjacent” became the focus of some controversies because if water adjacent to a WOTUS could be determined to connect, then it too was a WOTUS and the EPA could regulate activity on the land that water was a part of. The EPA developed regulations and denied permits to develop land they decided had water adjacent to a WOTUS.
In a famous water of the United States case Justice Kennedy developed a test which said if there was a “significant nexus” between a WOTUS and adjacent land with water that land could be regulated by the EPA. Unfortunately, the case did not outline what constituted a significant nexus. This has resulted in attempts by the courts and the agency via regulation to try and create a reasonable nexus outcome.
However, there is no one size fits all solution to this problem. For instance, in the same case I mentioned above, Justice Scalia created his own analysis of what was an adjacent WOTUS, and this has added to the confusion. He stated a water of the United States is one that is “relatively permanent, standing or continuously flowing… water forming geographic features that are described in ordinary parlance as ‘streams, oceans, rivers [and] lakes’. He went on to say in his definition ephemeral waters were not waters of the United States.
This, of course, is an important distinction in Nevada where so many of our surface streams are ephemeral.
Recently, the Supreme Court the case Sackett v. EPA. This case has been pending since 2012. The Sacketts own a small piece of land in northern Idaho upon which they have tried to build a house. Unfortunately, the EPA has denied them a permit to do that because it has ruled the wetland on the land is a water of the United States. The question argued before the Supreme Court was whether this wetland is a WOTUS under the significant nexus test or the flowing stream definition.
The EPA argues to be under its jurisdiction, the wetland does not have to be connected to a WOTUS and the Sacketts argued the wetland is not flowing or connected in any way to a WOTUS and is therefore not jurisdictional. Confused yet?
Meanwhile, the EPA has been hard at work over the last 17 years trying to create a definition that satisfies the dictates of the CWA, answering the question what a water of the United States is. There was a 2015 rulemaking, a reversal of that rule, and a 2020 effort by the Trump Administration which created the Navigable Waters Protection Rule (the 2020 Rule). Since the election of President Biden, his EPA has undertaken to repeal the 2020 Rule which has exemptions for agricultural practices and ephemeral waters.
The frustration over this is that the Sackett case deliberated by the Supreme Court and described above may create a new definition of a WOTUS different than the EPA’s new definition. Thus, the bureaucracy is seriously muddying the waters. (Pun Intended)
A decision in the Sacket case will probably not be published until late Spring 2023. I hate to say this, but I do not think we will be less confused than we are now, but I hope I am wrong.
I’ll see you soon.
By Joseph Guild