Editorial: WOTUS legal sideshow keeps going

Published 7:00 am Thursday, March 28, 2024

We have to hand it to the folks at the Environmental Protection Agency and the U.S. Army Corps of Engineers. Even after the highest court in the land told them they were wrong in defining wetlands, they continued hassling landowners.

They are the bureaucratic equivalent of chewing gum stuck to the bottom of a shoe.

We might admire their stick-to-itiveness, except for thing: They are wrong.

Readers of this newspaper are no doubt fully aware of the controversy that has been raging for years over the Waters of the U.S., also known as WOTUS. Congress referenced it in the Clean Water Act of 1972.

Unfortunately, Congress did a poor job of defining WOTUS. That opened the door for the EPA and the Corps, which enforce the Clean Water Act, to use their imagination. Not only did they write their own definition of WOTUS, they could enforce those rules however they wanted.

This created all sorts of havoc among landowners, many of whom are farmers and ranchers. Mudpuddles, seasonal streams, cattle watering holes — there was no end to the possibilities. This was especially vexing since the law referenced navigable waterways as being included. We have yet to see a cattle watering hole that was navigable.

Most importantly, wetlands were a sticking point for everyone. A previous Supreme Court decision had used an unhelpful term, “significant nexus,” which itself needed to be defined. The EPA and Corps were only too happy to supply their own definition.

To top it off, the EPA and Corps didn’t allow landowners to appeal their judgments, unless the landowners had the time and money to go to court.

Facing enormous fines, more than one farmer caved in to the agencies just to be rid of them.

The battle came to a climax last year when the U.S. Supreme Court took up WOTUS.

The court tossed out the meaningless term “significant nexus” and instead said that adjacent wetlands must have a “continuous surface connection” with “traditional interstate navigable waters” to be subject to the CWA.

Sounds simple enough.

Then the EPA and Corps got ahold of the issue. Despite the court’s clear definition, the agencies maintain that isolated wetlands and even dry areas can still be considered wetlands.

Up is down, and down is up.

More WOTUS-related lawsuits have already been filed.

What’s lost in the heat of the battle is how any of this benefits the environment. Congress only mandated clean water in the law it passed. What the EPA and Corps have done with that mandate is turn it into a Lawyer Employment Guarantee.

Other than the obvious cases involving pollution, we have to wonder whether any of this legal sideshow has helped the environment one bit.

Marketplace