The broadening and narrowing of the scope of WOTUS and the Environmental Protection Agency’s (EPA) ability to use its authority against farmers and other private landowners based on the political leanings of the White House has been an on-going challenge. The current administration was hasty in its decision to issue rules around WOTUS while the U.S. Supreme Court (SCOTUS) is deliberating on a case that may solidify how two key parts of the WOTUS – significant nexus and navigable waters – are defined.
In Sackett v. EPA, the SCOTUS must determine if the plaintiffs have the right to build a home on land purchased across the road from a lake. The EPA has contended the land is a wetland and connected to the body of water by a “significant nexus,” or a significant overlapping of the water sources. In this case, the EPA claims the significant nexus is underground. The plaintiffs argue there is no clear connection between their land and the neighboring lake. They specifically cite the road and the row of houses next to the lake as proof that their land, too, should be eligible for home-building.
While the Sacketts, and others, wait for the SCOTUS decision, House Joint Resolution 27 outlined Congress’s disapproval of WOTUS rules being issued by the EPA and U.S. Army Corps of Engineers while the decision was pending. The issuance of new WOTUS rules by regulatory agencies gives the appearance of trying to sway the SCOTUS into ruling in favor of the EPA many the new rules seem to directly address the questions involved in the Sackett case.
Members of Congress, and other elected officials, are charged with representing their constituencies. The resolution suggests members are doing just that – communicating the concerns of the people who elected them. The House vote on the resolution was 227-198 in favor of passage and the Senate vote was 53-43. Both chambers’ votes were bipartisan.
The WOTUS, under the Clean Water Act, was originally enacted in 1972 and has been under debate since. The decision of the EPA, Army Corps, and, by extension, the White House to intervene in the WOTUS process while a SCOTUS decision is pending muddies the waters. So, while the Congressional resolution is one the White House may choose to ignore, it is refreshing to see members of both parties recognize the concerns of regular citizens and the need for patience in the court case.
Pam Lewison is the Director of Agriculture Research at the Washington Policy Center and a Pacific Research Institute fellow. She co-owns and operates a family farm in Eastern Washington state.