Biden’s WOTUS Part One: Deep Dive with Attorney Charles Yates

Listen to Reagan Calk talk with Charles Yates about the timeline leading up to today’s WOTUS issue.

Associate Farm Editor, Reagan Calk, is visiting with Charles Yates, attorney at Pacific Legal Foundation and attorney in the Sackett v. EPA case about the timeline leading up to Biden’s recent WOTUS rule as it relates to the Sackett decision which will be made in 2023.

The Sackett story begins in April of 2007 when after the Sackett family had obtained all necessary local permits to build their single-family home, they began construction on a residentially zoned lot near Priest Lake, Idaho.

“Shortly after they broke ground, officials from EPA and the United States Army Corps of Engineers entered the lot and directed that all work cease immediately,” Yates said. “About six months later, the United States Environmental protection agency, EPA, followed up and issued a compliance order to the Sacketts. In that order, the agencies asserted that the Sackett’s lot is a navigable water- that it contains ported wetlands, making it a navigable water for purposes of the federal Clean Water Act.”

The order stated that the Sackett’s had violated the act by trying to build a home on their lot without first obtaining federal permission, gave them five months to complete substantial remediation, and threatened them with enormous civil penalties and tens of thousands of dollars per day if they fail to immediately comply.

“The Sackett’s were obviously blindsided by this because they own a three-quarter of an acre single family lot,” Yates said. “It is separated from anything plausibly resembling a water by a row of houses and an elevated road.”

The Sackett’s 15-year legal saga, Yates said, represents everything that has gone wrong with the federal government’s administration of the Clean Water Act.

This entire issue, Yates said, began in 1972 with the passage of the Clean Water Act, which was designed to combat water pollution and the nation’s many navigable waters. Waters discharged into navigable water, Yates said, are regulated by the federal government, whereas waters not discharged into navigable waters are regulated by the states.

“Beginning in the late 1970s, EPA and the Army Corps began interpreting that term, ‘navigable waters,’ incredibly broadly,” Yates said. “They sort of rejected any idea that it was a limitation of their authority and instead began interpreting it as a sort of broad, all-encompassing grant, then, to regulate virtually anything they wish to regulate. So, by 1986, they were regulating a virtually limitless array of wetlands, ponds, puddles, ditches, tributaries- any piece of land in the country that might have been damp, and they were essentially asserting authority to act as a federal land use or zoning administrators.”

As a result, Yates said, farmers, ranchers, or anyone who owns private property has been forced to spend an enormous amount of money in some cases to obtain a permit from the federal government to move forward with ordinary activities such as plowing their fields or building a home.

“Beginning in 2006, it all came to a head, when the Supreme Court entered into a decision in Rapanos v. United States, and a majority of the Supreme Court, in that decision, rebuked the agencies and essentially said, ‘no, this is not a limitless grant of authority, and there must be some limitation on what you can do,’” Yates said. “Unfortunately, the Supreme Court couldn’t reach a consensus on the appropriate test.”

Following the failure to reach a consensus, Yates said Justice Scalia wrote a plurality opinion to set forth a clear and reasonable test which would have limited agency regulation to waters understood in the conventional sense of the term (for example: a relatively permanent continuously flowing body such as a stream, ocean, lake or river). For a wetland to be regulated, Scalia wrote, it must have a continuous service connection to a true body of water.

“Justice Kennedy set forth a far broader test- a significant nexus test,” Yates said. “Under that test, he set forth that any sort of soggy piece of land that might have some sort of attenuated connection to a downstream navigable water by a subsurface connection’s effect on the general watershed could be regulated.”

Since 2006, Yates said every presidential administration has tried and failed to give effect to Rapanos.

“So, we have had this kind of perennial game of regulatory ping pong,” Yates said.

Recently, the Biden administration has finalized their own rule which relies primarily on Justice Kennedy’s significant nexus test, which Yates said is a remarkable example of federal overreach.

“The Biden administration has done this notwithstanding the fact that sometime in the spring, we are going to get a decision in Sackett- a decision that will provide much-needed clarity on this issue,” Yates said. “The Biden administration obviously decided it didn’t need it or want to wait for that clarity, it went ahead anyway, and asserted this incredibly broad rule.”

To read and listen to Biden’s WOTUS Part Two: Deep Dive with Charles Yates, click here.

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