November 8, 2018

How to find out if the EPA’s ‘navigable waters’ regulations affect you

By Anthony L. Francois Senior Attorney

In light of Joe Robertson’s appeal of his Clean Water Act conviction to the U.S. Supreme Court, readers might be wondering if any foot-wide ditches on their property are also “navigable,” as the EPA imaginatively re-interprets that word.

As it turns out, the answer depends on what state you live in. Here’s what you need to know:

  • In 22 states, the EPA uses one set of rules, adopted by the Obama Administration in 2015.
  • In 28 states, three different federal courts have enjoined the 2015 rules. In those states, the EPA is using older regulations, that the Supreme Court ruled invalid in 2006.
  • Four of the states where the EPA is using the 2015 rules, may switch to the prior rules, depending on how federal courts in Ohio and Oklahoma rule on requests for injunctions.
  • In the states where the 2015 rules are enforced, many small ditches are automatically covered.
  • But in the states where the older rules are in effect, your ditch may be “navigable” or not, depending on a complicated and expensive case-by-case analysis.

Sound confusing? It is. To determine how the “navigable waters” regulations may apply to you and your property, see the map below illustrating the current status in each state. We will update this map as the lawsuits over the 2015 regulations move forward.

In the long run, the Supreme Court needs to clarify what “navigable waters” means, to cut through the mess of regulations and lawsuits. We think Joe Robertson’s case is the ideal vehicle for the court to do just that.

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Robertson v. United States

The Environmental Protection Agency and the U.S. Army Corps of Engineers prosecuted Joe Robertson for allegedly polluting waters of the United States as a result of a series of ponds he built on land above the small town of Basin, Montana. The prosecution turned on a definition of “waters of the United States” that included land 40 miles away from the nearest navigable river. A jury agreed with this definition, finding the ponds had a “significant nexus” to the river, and convicted Robertson. PLF has asked the U.S. Supreme Court to overturn Robertson’s conviction.

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