Karen Budd-Falen: It’s An EPA “Miracle”—Turning Your “Dry Land” into a “Wetland?”

in Karen Budd Falen/Column

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By: Karen Budd-Falen 

Remember the story from the Bible where Jesus turned the water into wine? The  Environmental Protection Agency (EPA) can also perform miracles—turning dry land  into a wetland under the Clean Water Act (CWA). 

In fact, according to the EPA, a  “wetland” can be private property that has NO surface water but has water beneath the  surface that then flows under a paved street into a small manmade ditch that goes past  other homes and eventually flows into a lake (a navigable water). 

Because the EPA has  defined this dry land as a “wetland,” placing dirt on that property is regulated by the  agency. 

The case is now before the U.S. Supreme Court to decide whether the federal  government can determine that dry land is a wetland or a “Waters of the United States” (WOTUS) under the CWA. 

In April 2007, the Sackett family broke ground to build a home on a lot that they purchased in a residential subdivision. The lot is bordered by a county-paved road on one side and residential houses on the other three sides. 

After the houses, there is a lake.  Shortly after they began construction, the EPA sent investigators to inspect the job site  for CWA compliance. 

Without doing any of the technical measurements required under  the law, the EPA announced that the Sacketts were violating the CWA by putting  additional dirt on their land without a federal permit. 

The EPA then sent the Sacketts an Order stating that their lot was a “federally regulated wetland” and commanded them to restore the lot to its natural condition and fence it for three years, or face tens of thousands  of dollars in daily fines. 

The EPA Order was based on the property being adjacent to a  small ditch across the street that eventually drained into a navigable lake.  

The U.S. Supreme Court has now taken this case. The landowners are arguing that  the Court should clarify its decision in a prior CWA case from 2006. 

In that case, four  Supreme Court Justices held that the CWA only grants federal authority over a WOTUS  if the wetland (1) exhibits a relatively permanent water flow, (2) there is a continuous  surface water connection between the wetland and a relatively permanent waterbody, and  (3) it is difficult to determine where the wetland begins and the permanent navigable  water ends (called the “connected waters” test). 

In contrast, four Justices argued that the definition of a WOTUS should be determined by the federal government as the CWA  “experts.” 

The “tie” was broken by Justice Kennedy who said he would define a WOTUS  to include a wetland if it bears a “substantial nexus” to a navigable water.

Based on the Supreme Court split, every President has issued a markedly different  rule defining a “WOTUS.” Obama expanded the authority of the EPA over private  property justified by the “substantial nexus” test. 

Trump repealed Obama’s rule and  developed his own definition based on the “connected waters” test. Now Biden is writing  his own rule likely favoring greater authority for the federal government to govern the use  of private property.  

The ruling soon to be issued by the U.S. Supreme Court will hopefully give  landowners an answer as to what lands should be federally regulated under the CWA.  

This firm will be supporting the private landowners in this case because while I believe  that Jesus did and can perform miracles, under the U.S. Constitution, the federal  government should not have that same power.

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