Muddying the Clean Water Act: If You Don’t Get the Answer You Want, Go Ask Your Father
By Conner Nicklas
Remember when you were a kid and you would calculate whether to ask your mother or your father depending on the answer you wanted? This is exactly what the Biden administration did with the definition of “Waters of the U.S.” (WOTUS) rule under the Clean Water Act (CWA).
As of today, there are two opposing court decisions regarding the effect of the Trump definition of a WOTUS, followed by an announcement by the Biden administration picking which court it wanted to follow.
On March 2, the 10th Circuit Court of Appeals ruled it did not have the jurisdiction to stop the enforcement of the Trump WOTUS rule until there was a ruling on the merits of the case or Biden had legally issued a new rule. In stark opposition, on Aug. 30, a Federal District Judge vacated the enforcement of the Trump rule even before the Biden administration had a new rule to put in its place. Thus, in contrast to the 10th Circuit’s decision, with the stroke of a pen, the Arizona judge vacated the application of the Trump rule throughout the nation.
The decision is very frustrating. Normally, the previous regulation remains in place until it is replaced. However, instead of simply dismissing the case and sending the regulation back to the Environmental Protection Agency (EPA) and Army Corps of Engineers to revise, the Arizona judge, appointed by President Obama, issued a national vacatur of Trump’s WOTUS definition.
Her ruling brings up a major issue: Should a federal district judge in Arizona, who does not have any jurisdictional authority outside of the state of Arizona, have the power to nationally end a legally adopted rule?
Judge Marquez’s ruling once again muddies the waters and allows the EPA and Army Corps of Engineers to arbitrarily enforce a law that could result in thousands of dollars in fines and jail time to a violator. The CWA was passed in 1972 to protect the “waters of the United States” by making it illegal to discharge a pollutant into a WOTUS unless a permit is obtained.
However, the law became mired in controversy when the federal agencies began charging people with CWA violations for discharging pollutants in waters that were never intended to be regulated, including irrigation ditches, stock ponds and isolated and seasonal wetlands. The lack of a tangible statutory definition for a WOTUS has generated hundreds of cases to ascertain the span of the federal government’s jurisdiction. In turn, the CWA has a history of being weaponized to prevent development projects from moving forward and harassing farmers and ranchers.
Also, it is important to note just because a body of water may not be defined as a WOTUS does not mean it is not protected. All waters not directly under the federal government’s jurisdiction usually fall into the state’s jurisdiction. For example, the Wyoming Department of Environmental Quality is the state agency tasked to protect Wyoming’s water quality.
By killing the Trump CWA rules, we are once again left in an impossible position because no one actually knows what a “water of the United States” is. Does the federal government have jurisdiction over an irrigation ditch? How about the bog down the street?
In its pleadings before the court, the EPA identified 333 projects it believed it would have had jurisdiction over prior to the Trump rules. Disturbingly, the Trump rule has only been in place for less than a year. Thus, Washington, D.C. will again arbitrarily insert itself into our lives.
The situation surrounding the national demise of the Trump CWA rules begs an even bigger question. How does a single judge in Arizona have the power to invalidate legally enacted regulations for the entire nation?
By allowing district court judges to invalidate regulations on a national scale, we are giving an undemocratically elected judge the ability to affect people outside of their jurisdiction. It is particularly egregious when the 10th Circuit Court came to the opposite result.
This unprecedented power encourages the worst kind of forum shopping in which organizations target specific judges to advance their radical agendas. In the past couple of years, the Supreme Court has questioned the authority of district courts issuing nationwide injunctions. The hope is the Supreme Court finally puts an end to this form of radical lawmaking and forum shopping from the judge’s bench.
Conner G. Nicklas is an associate attorney with Falen Law Offices, LLC with a primary focus on property rights, environmental and natural resources law. Falen Law Offices, LLC, has attorneys licensed to practice law in Colorado, Illinois, Montana, Nebraska, New Mexico, North Dakota, South Dakota and Wyoming.