Time to repeal and replace unconstitutional federal waters rule
Originally published by the The Hill June 25, 2018.
The Obama administration’s embattled “waters of the United States” (WOTUS) rule, which expanded the scope of the federal Clean Water Act, lingers on the books despite an executive order from President Trump and several administrative actions. But this month, this overreaching rule suffered another blow as yet another federal court noted its probable illegality and forbade its enforcement in 11 more states (bringing the total number of states where the rule cannot be enforced to 24).
It’s doubtful the illegal WOTUS rule ever will be enforced in the other 26 states, thanks to the Trump administration’s decision to repeal and replace it. But getting to that outcome is proving to be more difficult and time-consuming than expected. Every step the administration has taken on this issue inevitably has been dragged into litigation.
This litigation morass will all be worth it if we end up with a clear, concise rule that fairly interprets the Clean Water Act’s reach. In particular, the eventual replacement rule should be designed with real people in mind. Both the Obama-era rule and the bureaucratic thicket of regulations and guidance documents that preceded it were notoriously complex to apply. It shouldn’t require an army of lawyers, hydrologists and consultants to determine whether your land is subject to federal permitting. Deep-pocketed corporations can work with such a system, but average Joes can’t.
Consider the plight of Wyomingite Andy Johnson, a Pacific Legal Foundation client. His case is a perfect example of how the blurry law has been used by bureaucrats against innocent people behaving reasonably.
Johnson constructed a pond in a small stream that crossed his property to provide a safe, reliable water source for his four daughters’ horses. The stream had been heavily degraded by decades of ranching, resulting in substantial erosion. To protect his horses from falling down the steep, eroded banks, Johnson worked with state officials to design an environmentally friendly stock pond. The result was a boon to both his livestock and the local environment. The pond filtered the water that passed through it, established wetlands where there had been none, and provided habitat for bald eagles and other wildlife.
Despite these clear and uncontested environmental benefits, federal bureaucrats asserted the stream was subject to the Clean Water Act, threatening Johnson with nearly $40,000 a day until he removed the pond. He tried to reason with them for nearly two years, but they wouldn’t budge, nor would they explain why his land was covered by the statute. With potential fines reaching $20 million, he sued to protect his family from the threat of financial ruin.
Only then did Johnson learn those threatening him had never bothered to investigate his property. They claimed a 200-mile line could be drawn from his property to a navigable water source. But, because they didn’t leave their desks before issuing their threats, they didn’t know that part of their alleged connection flowed the opposite direction that they had assumed: The water in Johnson’s pond never reaches any water covered by the Clean Water Act. Apparently not even the bureaucrats charged with implementing the fuzzy rules can apply them accurately.
Congress and the president should fix this problem. If they don’t, the courts should strike this law down as unconstitutionally vague, forcing Congress to fix it.
There are strong indicators from the Supreme Court that the justices realize this and are growing impatient. In 2012, Justice Samuel Alito wrote an impassioned opinion urging “Congress to do what it should have done in the first place: provide a reasonably clear rule regarding the reach of the Clean Water Act.”
Four years later, when Congress and the president failed to act, Justice Anthony Kennedy joined the chorus, hinting that he might declare the law unconstitutional if something isn’t done. During oral argument in yet another Clean Water Act case to reach the high court, Justice Kennedy observed that “[t]he Clean Water Act is unique in both being quite vague in its reach, arguably unconstitutionally vague, and certainly harsh in the civil and criminal sanctions it puts into practice.”
Improving water quality is a laudable goal, and significant strides have been made thanks to technological innovation and economic growth. But writing hopelessly vague regulations that people cannot possibly understand or comply with is no way to promote environmental renewal. Instead, it is merely a trap for the unwary.
That’s doubly unfortunate. Not only is it unfair to the property owners caught in the byzantine system, but it also undermines environmental protection. It’s a lot easier to protect environmental values before damage occurs than to restore them after the fact. That’s why, for the sake of the environment, it is essential that environmental regulation be clear, concise and capable of being followed by every American. In its current form, the WOTUS rule meets none of those criteria.
Jonathan Wood is an attorney at Pacific Legal Foundation, which litigates to enforce the Constitution’s guarantee of individual liberty, and an adjunct fellow at the Property and Environment Research Center (PERC), a conservation and research institute in Bozeman, Montana, dedicated to free-market environmentalism.
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