The Environmental Protection Agency’s decision to repeal the “waters of the U.S.” rule is welcome, but more is needed when it comes to the legal statutes currently being interpreted by the courts.

As the case of California farmer John Duarte clearly highlights, the Army Corps of Engineers and Department of Justice need to re-evaluate and revise their enforcement of the Clean Water Act and WOTUS to ensure farmers and ranchers are protected from onerous fines and penalties that threaten their way of life, noted House Agriculture Committee Chairman Mike Conaway (R., Texas).

Last month, Conaway and House Judiciary Committee Chairman Bob Goodlatte (R., Va.) sent a letter to U.S. Attorney General Jeff Sessions calling for a review of DOJ's decision to prosecute a California court case involving Duarte alleging violations under the Clean Water Act – directly related to the Obama administration’s waters of the U.S. rule.

Duarte’s case stems from a February 2013 U.S. Army Corps of Engineers (the Corps) allegation that the vernal pools on Duarte’s land are considered WOTUS, thus subject to CWA authority. The Corps argued that based on inconsistent agriculture production patterns on Duarte’s land prior to his purchase in 2012 he did not qualify for farming exemptions and had violated the CWA when he plowed his field in late 2012. Duarte now faces fines of roughly $2.8 million and additional costly mitigation measures.

James Burling, Pacific Legal Foundation’s director of litigation, said significant changes are needed in how the law is interpreted and what guidances should be followed.

“The WOTUS rule called for a dramatic, unprecedented and unconstitutional expansion of the federal government’s authority to regulate all manner of land use, no matter how remote and tenuous the connection is to an actual navigable water,” Burling noted.  “The Constitution permits the federal government to regulate only places and activities that affect interstate commerce. This is not a carte blanche for the feds to regulate anything they please no how remote the connection.”

“The WOTUS rule purported to give the federal government the right to regulate all manner of land use activities on land that could be thousands of feet from a non-navigable stream that might be connected, eventually, to a navigable waterway,” he continued. “The WOTUS rule went far beyond the authority to regulate wetlands adjacent to navigable waterways, and threatened farmers, ranchers, home builders, and home owners across the nation with expensive and onerous permitting requirements, and criminal penalties and millions of dollars in fines for activities as innocent as plowing a field.”

Burling said the WOTUS rule withdrawal is not enough. “Even before the rule, the EPA and Corps of Engineers had been terrorizing land owners with the so-called Rapanos guidance, named after a Supreme Court case where the federal government lost its claim that it could regulate John Rapanos’s fields. Justice Scalia, writing for four members of the Court, said that the federal government could regulate a purported wetland only if there were a surface connection with a navigable water.”

Burling explained the EPA and Corps have ignored that statement, instead relying on the opinion of Justice Kennedy who, writing only for himself, said all that is needed for federal jurisdiction is a “significant nexus” to a navigable waterway. “But the term "significant nexus’ is undefined and the federal government has interpreted it to be absurdly broad, arguing that if a single molecule of water dropped on dry land ever reaches a navigable water, even years later, that is enough to force landowners to obtain federal permits before using the land.”  

He stated this so-called “Rapanos guidance was never adopted pursuant to the Administrative Procedures Act, violates the Congressional Review Act, and flies in the face of the Supreme Court’s holding in Rapanos.”

“In short, while Pacific Legal Foundation applauds the revocation of the WOTUS rule, a crucial next step will be for the government to likewise drop the Rapanos guidance and instead adopt the Scalia opinion from that case,” he stated.