Concerned that a Biden administration plan to resuscitate an Obama-era rule that would impose federal zoning across millions of acres of private land, Rep. Dan Newhouse (R-Wash.) introduced an amendment in the US House that would bar the Environmental Protection Agency (EPA) from going ahead with the scheme pending the outcome of a landmark case before the Supreme Court.

At issue is the federal government’s powers under the 1972 Clean Water Act (CWA) to regulate “waters of the United States” (WOTUS). The CWA grants EPA and the US Army Corps of Engineers power to regulate “navigable waters of the United States,” initially understood, but not specifically stated, to include rivers, bays, lakes, and other bodies of water that are navigable. However, the lack of clarity in the statute has led federal regulators, often working with environmental groups, to extend the CWA’s jurisdiction to include drainage ditches, farm ponds, and ephemeral bodies of water that are in no way “navigable.”

Two vaguely worded Supreme Court decisions from earlier in the century further muddled the issue, prompting the Obama administration to “clarify” federal jurisdiction by granting EPA and the Corps sweeping powers to regulate all manner of waters, even if they had no connection to navigable waters. The Trump administration overturned the Obama rule, and now the Biden White House wants to bring it back.

Fearing the worst for his predominantly rural constituents, and for rural communities elsewhere in the country, Rep. Newhouse decided to take action. He proposed an amendment to the fiscal 2023 Interior, Environment, and Related Agencies Appropriations Bill asking to block the WOTUS rule until the Supreme Court rules on the Sackett v. EPA case.

“More than Just a Logistical Nightmare”

“The Obama-era Waters of the United States – or WOTUS – is more than just a logistical nightmare that’s plagued the landowners, businesses, farmers, ranchers, and rural communities in Central Washington and all across the country for years, it calls into question whether farmers can even begin to work their land,” Newhouse said. “I am proud to lead this effort to provide certainty to Central Washington and rural communities like it all across the country so they can escape this government overreach and do what they do best: thrive.”

To the surprise of no one, something as sensible as holding off on a regulation that may be overturned in a few months by the Supreme Court stood no chance in Speaker Nancy Pelosi’s House. Newhouse’s amendment was blocked by the Democratic majority.

But Newhouse may get the last laugh. The aforementioned Sackett v. EPA case revolves around a couple who wanted to build their dream house on picturesque Priest Lake in northern Idaho. Shortly after construction began on their home, EPA claimed they were violating the CWA and ordered them to cease construction, restore their property to its pre-constriction state, and threatened them with tens of thousands of dollars in fines each day if they didn’t do as they were told. There were no “waters of the United States” on their land, much less “navigable” waters. Their nightmare has dragged on for many years and provides a foretaste of what others can expected if the Biden WOTUS rule goes into effect. Farmers and ranchers, for example, could be forced to go to EPA to get permits just to carry out normal operations on their property. The bureaucrat in far-away Washington deciding their permit would be someone who has never seen or set foot on their land.

The Supreme Court’s recent slap down of an EPA rule to regulate greenhouse-gas emissions from power plants, West Virginia v. EPA, shows that the current court has lost patience with federal agencies acting without congressional authority. In West Virginia v. EPA the High Court ruled that EPA lacked such authority under the Clean Air Act, and it may well take a similar position in Sackett v. EPA with respect to the Clean Water Act. Oral arguments will be heard in October, and a ruling is expected early next year.

Author

  • Bonner R. Cohen, Ph. D., is a senior policy analyst with CFACT, where he focuses on natural resources, energy, property rights, and geopolitical developments. Articles by Dr. Cohen have appeared in The Wall Street Journal, Forbes, Investor’s Busines Daily, The New York Post, The Washington Examiner, The Washington Times, The Hill, The Epoch Times, The Philadelphia Inquirer, The Atlanta Journal-Constitution, The Miami Herald, and dozens of other newspapers around the country. He has been interviewed on Fox News, Fox Business Network, CNN, NBC News, NPR, BBC, BBC Worldwide Television, N24 (German-language news network), and scores of radio stations in the U.S. and Canada. He has testified before the U.S. Senate Energy and Natural Resources Committee, the U.S. Senate Environment and Public Works Committee, the U.S. House Judiciary Committee, and the U.S. House Natural Resources Committee. Dr. Cohen has addressed conferences in the United States, United Kingdom, Germany, and Bangladesh. He has a B.A. from the University of Georgia and a Ph. D. – summa cum laude – from the University of Munich.