"Waters of the US" is About to Get the Trump Treatment

It's Trump's turn to issue guidance on controversial Clean Water Act definitions

POLITICAL FOOTBALL—“WATERS OF THE US” IS ABOUT TO GET THE TRUMP TREATMENT

By Gary Hubbell, ALC, Accredited Land Consultant

It was that day in 1969 when the Cuyahoga River caught fire that America awakened to its pollution problem. In the rapid expansion of the American economy after World War II, many new industries had sprung up with new technologies, but there were precious few environmental safeguards in place. Factories had been dumping chemicals and effluents into rivers for years, to the point that many rivers became “dead”—devoid of fish and wildlife. General Electric famously dumped dangerous PCB’s into New York’s Hudson River between 1947 and 1977, poisoning fish and waterfowl, and then an oil slick caught fire that day in 1969 on Ohio’s Cuyahoga River, and people realized something had to be done.

The Clean Water Act enjoys widespread support

That was the genesis of the Clean Water Act (CWA), which was passed in 1972 with widespread support. As with many major pieces of legislation, it has had unforeseen consequences. While everyone agrees that dumping toxic chemicals into rivers is bad and shouldn’t be done, the Clean Water Act has been used to further an agenda far beyond its original purpose of keeping water clean. It has become the bludgeon used by environmental groups, sympathetic left-leaning judges, and “true believer” Environmental Protection Agency bureaucrats to stymie growth and development for over 50 years.

The devil is in the details—interpreting WOTUS

As with many sweeping pieces of legislation, the CWA hung by a slender constitutional thread. The Clean Water Act was found to be constitutional based upon the Commerce Clause of the Constitution which includes “channels”, or waterways, highways, airways, and later, the internet. The CWA was found to be justified under the concept of “navigable waters of the US”. Very quickly the “navigable” part of the moniker was abandoned, shortening the acronym to “Waters of the US”, or “WOTUS”. Ergo, if a fisherman on Lake Michigan brought his catch from his home state of Milwaukee, Wisconsin, to a processor in Muskegon, Michigan, obviously he’s conducting commerce on Waters of the US. A whitewater raft company in Glenwood Springs, Colorado taking clients on a raft trip on the Colorado River is conducting commerce on Waters of the US. People pay money—commerce—for a recreational experience of floating down the river through whitewater rapids. Fair enough.

The vaguely written Clean Water Act sparks confrontation

While the intent of the CWA seems to be clear, Congress was unfortunately vague in how it would be implemented. The sausage-making of interpreting the CWA would henceforth become a political football that would be punted back and forth from conservative to liberal administrations for the next 50 years. While everyone could understand that dumping poisonous effluent into rivers shouldn’t be done, how could the federal government mandate to a farmer in Illinois that he couldn’t install tile drains to keep water out of his fields? How could the EPA red-tag a housing development in Oregon because of a few cattails in one corner of the property? After all, the 10^th Amendment supposedly leaves those powers of regulation to the states, and no one could argue that a standing puddle in a field was a “navigable water”—could they? Yes, they could.

Conflicting definitions of WOTUS—“Significant Nexus”

While “navigable waters” can be a very broad category, that didn’t achieve the environmentalists’ goals, however. EPA bureaucrats, with the help of a slew of environmental organizations, soon twisted the CWA and WOTUS to encompass practically every drop of water within the territorial boundaries of the United States. This culminated in the 2006 Rapinos v. United States Supreme Court decision, in which the “significant nexus” doctrine was established. In a 4-4-1 decision, Justice Kennedy wrote that a wetland, ditch, or puddle could be declared “Waters of the US” if there was a “significant nexus” to the traditional navigable water through a physical, chemical, or biological connection. In other words, every drop of water is somehow connected to the nearest navigable stream or lake. If a summer thunderstorm dropped half an inch of water onto a dry field in Oklahoma, that water would eventually percolate into the groundwater aquifer that is connected to the nearest river, and any water draining off that field would be considered Waters of the US. Practically every puddle, drainage ditch, trickle, spring, or rivulet was now under the auspices of the EPA, which enthusiastically began heavy-handed enforcement of their rules. While originally authored as a means to keep polluters from dirtying our nation’s rivers, streams, and lakes, it soon became a cudgel to prevent developers, farmers, road builders, ranchers, and all manner of everyday Americans from using their properties as they saw fit.

EPA bureaucrats vs. hard-headed Westerners—guess who won?

Instead of choosing their battles carefully, the EPA went all-in with bureaucratic overreach. The examples are many. Andy Johnson, a farmer in Wyoming, dammed a small stream on his ranch to build a pond. He was prosecuted by the EPA for violating the Clean Water Act and threatened with $75,000 a day in fines, which soon escalated to $20 million. After five years of court battles, Andy Johnson finally prevailed after agreeing to plant some willows to stabilize the banks of the pond. The EPA slunk away in defeat.

The ”Sackett v. EPA” decision—a more narrow definition of WOTUS

A similar case occurred in 2006 in Priest Lake, Idaho, where Michael and Chantel Sackett had purchased a plot of land to build a vacation home. A small wetland existed on the property, but it was more than 200 feet away from the lake with no physical connection to the lake. The Sacketts began filling in the wetland with gravel in preparation to build their home. A neighbor turned them in, and the EPA began the same bluster that they had use against Johnson—red-tagging the project, massive fines, and threats of jail time. The Sacketts stood their ground and sued the EPA in 2008, stating that the EPA had no statutory authority over waters that were not navigable Waters of the US. Although it took 15 years to wind its way through the court system, the Sacketts eventually prevailed with a groundbreaking Supreme Court decision. In the 6-3 majority Sackett ruling, the Supreme Court significantly narrowed the definition of WOTUS, stating that federal jurisdiction under the Clean Water Act applies only to waters that have a “relatively permanent” and "continuous surface connection" to navigable bodies of water. Waters of the US were now defined as “only those relatively permanent, standing or continuously flowing bodies of water forming geographical features that are described in ordinary parlance as streams, oceans, rivers and lakes.” This decision effectively removed isolated wetlands, ditches, and other remote bodies of water from federal oversight, overturning decades of regulatory practice—at least in theory.

Not so fast! The Biden Administration ignored the Sackett decision

As demonstrated many times by the Biden Administration in other ways, the law didn’t seem to matter. Although Sackett was decided during the Biden presidency in 2023 with a sharply reduced definition of WOTUS, Biden’s EPA issued intentionally vague and confusing rules that did not seem to even acknowledge the new Supreme Court ruling. The Biden interpretation is so vague that practically any new use of a property involving water can be used as a means to punish the farmer, rancher, or developer. Biden’s rules were once again an overly broad and obtuse definition of wetlands that was difficult for administrators, farmers, developers, and landowners to understand if wetlands, ditches, streams, or intermittent water sources were jurisdictional or not. It was such an egregious stance that 24 state attorneys general sued the Biden administration over it.

Now it’s Trump’s turn—new guidance is forthcoming

Obviously Biden’s WOTUS interpretation was unacceptable, so the Trump administration is re-writing the guidance under the careful watch of EPA administrator Lee Zeldin. However, it takes time. The Trump administration has held several listening sessions with interested stakeholders and has solicited opinions from land brokers, farmers, ranchers, developers, and landowners regarding proposed new rules—a scenario that takes place each time a new administration comes into power. Stakeholders need clarity on what the rules are going to be, because land planning is a long-term endeavor.

Political whiplash—conflicting WOTUS interpretations with each new administration

In truth, however, Congress needs to take up the matter and pass new legislation that defines “Waters of the US” once and for all. Courtney Briggs is the Senior Director of Government Affairs with the Farm Bureau. “It’s the most politically polarizing issue that I work on,” she explains. “Environmental groups fundraise off of it. I don’t think they really want a solution to it because it keeps money flowing in. It’s very political. The number one question I get from our members is ‘When does the ping-ponging stop?’” She notes that two different congressmen, including Russ Feingold, introduced legislation to clarify WOTUS and both were primaried and lost after the deluge of criticism and funding pointed against them by environmental groups during their primaries. Who’s brave enough to do it? Political insiders are looking for

a MAGA congressperson in a solidly red district. Harriet Hageman from Wyoming immediately comes to mind. Mike Lee from Utah is another candidate. America deserves clarity, literally. We want clean, clear water, but we do not want the government involved in every little trickle and puddle on our properties. We want the government out of our lives.

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Gary Hubbell is an Accredited Land Consultant with the Realtors Land Institute, brokering ranches, farms, vineyards, orchards, and hunting properties across Colorado and Utah. He raises hay, horses, and Labrador retrievers on his ranch in Crawford, Colorado. Gary was a long-time columnist with The Aspen Times and has written for many newspapers, magazines, and websites, including Western Horseman, Shooting Sportsman, Aspen Sojourner, Terra Firma, eddiebauer.com, and many others. He has won two Colorado Press Awards and a Colorado Book Award for his flyfishing book, “Shadowcasting”. Gary has been quoted by Rush Limbaugh and interviewed several times by Glenn Beck.