Since it’s implementation the Clean Water Act has developed a reputation as being ambiguous and arbitrarily implemented, and has plagued property owners and agriculture producers across the U.S. The EPA is now attempting to expand the scope of that Act through the controversial Waters of the United States (WOTUS) rule, which would place all bodies of waters—including puddles and stock ponds—under federal regulatory jurisdiction.
But a recent U.S. Supreme Court decision has added a degree of clarity to the Clean Water Act, and more importantly an opinion by Justice Kennedy in the case signals good news on a multi-state challenge to the WOTUS rule.
One June 1st, the Supreme Court ruled unanimously to allow landowners the ability to challenge in Court the EPA’s Clean Water Act “jurisdictional determinations,” which are used by landowners to determine if their project falls under Clean Water Act jurisdiction before going through costly permitting. The government contended that jurisdictional determinations did not constitute final agency action, and therefore landowners should not be able to sue for relief in Court. The Court unanimously ruled against the EPA in the case, enabled landowners like Andy Johnson to successfully challenge the EPA.
Johnson won a legal settlement in the North Dakota Federal District Court against the EPA over a stock pond he constructed on his property. Johnson had acquired all of the necessary state permits to build a small dam and divert water from an irrigation canal to create his pond, but under the Waters of the U.S. rule, he was also required to go through a federal permitting process with the EPA.
The EPA claimed that Johnson’s stock pond was in violation of the Clean Water Act and that prior to diverting water he needed to comply with the EPA’s federal permitting process. They later ordered Johnson to remove the stock pond or face $37,500 in fines for each day that he did not remove the pond.
The ruling of the Supreme Court has given David the means to slay Goliath. And Johnson’s win against the EPA is an example of how the new Supreme Court ruling has begun to level the playing field in the battle between big government and private landowners.
But perhaps even more significant development that stems from this case is the concurring opinion on Justice Kennedy—the important swing vote—related to the WOTUS rule and the EPA’s expansion of the Clean Water Act. Here’s an excerpt of Justice Kennedy’s brief opinion:
“…based on the Government’s representations in this case, the reach and systemic consequences of the Clean Water Act remain a cause for concern. As JUSTICE ALITO has noted in an earlier case, the Act’s reach is “notoriously unclear” and the consequences to landowners even for inadvertent violations can be crushing. See Sackett v. EPA…the Court is right to construe a Jurisdictional Determination (JD) as binding in light of the fact that in many instances it will have a significant bearing on whether the Clean Water Act comports with due process. The Act, especially without the JD procedure were the Government permitted to foreclose it, continues to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation.”
WOTUS has been challenged in federal court and will almost certainly make its way before the U.S. Supreme Court. If the recent string of decisions against the Obama administration’s EPA related to water policy are any indication, WOTUS will not stand up to scrutiny.