Associate Farm Editor, Reagan Calk, is back talking with Charles Yates, attorney at Pacific Legal Foundation and attorney in the Sackett v. EPA case, for a part two of a deep dive on Biden’s WOTUS (Waters of the United States.) This time, Yates talks about the new WOTUS rule and how it impacts private landowners such as farmers and ranchers.
After being asked by many groups to “press pause,” the Biden administration has recently put out their new WOTUS rule, knowing that the Sackett v. EPA decision in the spring of 2023 could very well change everything.
“It sort of boggles the mind as to why the Biden administration would have done this now, and it certainly will make things more difficult because it is just yet another episode in this back and forth that has been occurring,” Yates said.
In the Sackett case, Yates said the federal government’s assertion of authority is being challenged, as they are referring to the significant nexus test in regulating the Sackett’s ability to build their home.
“At the Supreme Court, the Sacketts have argued that this assertion of authority was illegal, and their reason they have argued it is illegal is because a significant nexus test upon which it relies is illegal,” Yates said.
Yates said the Biden rule relies predominantly on the significant nexus test.
If the Sackett case wins at the Supreme Court, Yates said, essentially, this means the Supreme Court has entered an order that the significant nexus test is illegal. This would have major implications for the Biden rule, meaning that it is also illegal, Yates said, forcing them to have to go back to the “drawing board” on their rule.
Yates also recently put out his comments on the House Committee on Transportation and Infrastructure introducing a Congressional Review Act resolution to disapprove and strike down the Biden administration’s recently issued WOTUS rule:
“The Biden administration’s revised definition of ‘navigable waters,’ is a staggering example of federal overreach,” Yates said. “But making matters worse, it has been issued in advance of the Supreme Court’s providing crucial guidance in Sackett II. If anything is clear, it is that absent definitive guidance from the Supreme Court, a lawful, workable, and durable definition of ‘navigable waters’ will remain elusive. The last three presidential administrations have failed to craft a regulatory definition of navigable waters” that both satisfies the requirements of the Clean Water Act and survives judicial review. With each change, landowners have been forced to conform to an ever-shifting standard at enormous expense, and at pains of immense liability. By refusing to wait for a decision in Sackett II, the Biden administration has brushed aside the freedom, security, and prosperity of millions of American landowners. Instead, it has decided to perpetuate this continuous game of regulatory ping-pong, piling confusion, on to fifteen years of confusion. There is no reason whatsoever to believe the Biden administration has got it right this time. And it is important that this confusing and illegal interim measure be put to a stop before even more damage is done.”
Depending on what happens in the Sackett case, Yates said it is important to note that the Biden rule could turn out to be some sort of an interim measure, not lasting very long.
“That just makes it another episode in this regulatory ping-pong that has been going on for 15 years, so it is important that congress makes that right,” Yates said. “Really, the thing to remember here is that as we have gone back and forth, four separate rulemakings in the course of fifteen years.”
Each time the government comes out with a new rule, Yates said millions of Americans seeking to use their own property are being forced to adapt to new (broad) regulations and risk criminal liability trying to keep up.
The biggest concern for farmers and ranchers, Yates said, is that by doing a common land-use activity, they may unintentionally violate the Clean Water Act under the significant nexus test.
“We are not talking about dumping oil into a lake,” Yates said. “We are talking about something as innocuous as plowing a field.”
The significant nexus test is an issue for landowners, Yates said, because it is fundamentally vague and requires individuals to have a substantial scientific expertise and technical equipment to map the significant nexus.
“What the Sacketts have proposed to the Supreme Court, is they have proposed the test for wetlands jurisdiction, which is largely based on Justice Scalia’s test,” Yates said. “The test the Sacketts have proposed, which we hope the Supreme Court adopts, which the Supreme Court should adopt, is this idea that in order to regulate a wetland a landowner has to be able to look at that wetland and say, ‘that is regulable because it is on the shoreline of a navigable water which I know to be regulated, and I cannot tell where the wetland ends, and the water begins.’”
To read and listen to Biden’s WOTUS Part One: Deep Dive with Attorney Charles Yates, click here.