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An Update on WOTUS from Pacific Legal Foundation

An Update on WOTUS from Pacific Legal Foundation

By Charles T. Yates

Pacific Legal Foundation, which represents Washington Cattlemen’s Association in ongoing litigation over WOTUS, provides the following update:

The controversy over the federal government’s regulatory authority under the Clean Water Act continues.

The Clean Water Act authorizes the federal government to regulate discharges of pollutants into so-called “navigable waters.” Since the Clean Water Act was enacted, the federal government has expanded its regulatory powers far beyond what Congress authorized. Many property owners have seen their rights violated in the process.

In 2006, in the case of Rapanos v. United States, a majority of the Supreme Court rejected the government’s position that the Clean Water Act regulates virtually all wetlands and tributaries in the country. But no opinion of the Court garnered a majority of the Justices’ votes. And since Rapanos, successive presidential administrations have failed to craft a definition of “navigable waters” that implements the decision while protecting the rights of ordinary Americans. Most recently, the Trump Administration enacted a definition of “navigable waters” that greatly improved matters, but which still swept too much land into the federal government’s regulatory dominion. Earlier this summer, the Biden Administration announced plans to repeal that Trump definition and try again.

Since the Biden Administration’s announcement, several significant developments have taken place.

First, on August 30, a district court judge in Arizona “vacated” the Trump Administration’s definition. A district court judge in New Mexico made a similar ruling on September 27. In response to the Arizona ruling, EPA and the Army Corps announced on September 3 that they will no longer implement the Trump definition. Instead, they will return to implementing the 1986 definition of “navigable waters,” the very same definition that was found to be overbroad in Rapanos.

Second, on September 22, Pacific Legal Foundation filed a cert petition to the U.S. Supreme Court on behalf of two Idaho property owners, in the case of Sackett v. EPA. In that petition, PLF is asking the Supreme Court to revisit Rapanos. If granted, PLF’s cert petition will provide the Supreme Court with an opportunity to announce a rule for federal wetlands jurisdiction that is more respectful of private property rights and conforms more closely to Congressional intent.

Considering these developments, Washington Cattlemen’s Association has elected to stay its own litigation over the meaning of “navigable waters” for six months, while it awaits further information.

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