Note and Corrigendum by Kip Hansen — 2 September 2023
It seems that I was too quick off the mark on the EPA v SCOTUS story in my recent piece here at WUWT.
Brief Summary: In March 2023, the Supreme Court of the United States (SCOTUS) ruled against the EPA in a very important case named Sackett v. Environmental Protection Agency, No. 21-454 [ copy of the decision in this .pdf ]. In that ruling, the Court stated that the Waters of the United States (WOTUS) rule currently used by the EPA and the US Army Corps of Engineers was unconstitutional for a variety of reasons – dealing with being arbitrary and vague and lacking authority under the Clean Water Act. The EPA was told:
“In sum, we hold that the CWA [Clean Water Act] extends to only those “wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right,” so that they are “indistinguishable” from those waters. ….. This holding compels reversal here. The wetlands on the Sacketts’ property are distinguishable from any possibly covered waters.”
This ruling thus required the EPA (and Corps of Engineers) to re-write their operational definition of the Waters of the United States.
The “new rule” was announced on the 29th of August. And I wrote about it on the 30th of August. The EPA webpage issuing the announcement was last edited on 1 September, but there is no note as to when it first went live.
As of the 30th of August the new “new rule” was not yet in effect and searching for the “new” WOTUS rule led to the rule I discussed, which was no different than the “old” rule.
But with a hat tip (and a song and dance) to reader “Chris”; there is actually a new new rule (almost) in which the EPA complies with the SCOTUS ruling after all.
The New New Rule is not yet the “rule of the land” – but it will be. The EPA has publicized “Amendments to the “Revised Definition of ‘Waters of the United States’”. Please note that “The conforming rule will become effective upon publication in the Federal Register.”
I have verified that once the “conforming rule” becomes effective, it will adhere to the standards required by SCOTUS, which are basically that wetlands are only under the jurisdiction of EPA/Corps of Engineers under the CWA if they have “a continuous surface connection” to a body of water that legitimately is considered a water of the United States. This wording replaces the vague “significant nexus standard” and complies with the SCOTUS ruling “That the CWA jurisdiction applies “only those “wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right,” so that they are “indistinguishable” from those waters.”
Using Google Search, I have not been able to confirm that the “Amendments” have been published in the Federal Register as of today. I trust that they either have been or will soon be so published and in effect.
Bottom Line:
1. Slow down there boy! Wait for the dust to settle before writing.
2. The EPA will comply with SCOTUS and has Amendments doing so prepared to be published (may have been publish in the last 24 hrs).
3. This is a tremendous win for the citizens of the United States – curtailing the overreach of the EPA on wetlands.
4. My often-wet lawn is now safe from the long arm of the EPA. Under the old rule, it qualified as a wetland that could fall under the jurisdiction of the EPA.
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Author’s Comment:
Writing here is always an adventure and those of us that do so gain as much from readers as vice versa.
Many thanks to the readers only known as “Chris” who unearthed the Amendments announcement.
Thanks for reading.
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Thank Goodness. Two weeks ago, most of the desert around my house would have qualified as “wetlands” under the old rules.
Yes … “wet land” =/= “wetlands”.
=/=
Isn’t it a bugger that there is no easy way to say “squiggle atop half an equal”?
Yes … I wasn’t going to resort to the more obscure FORTRAN form:
“wet land” .NE. “wetlands” either!
Does ASCII work?
÷
No. It doesn’t.
≈
≃
How you do datt????
It’s relatively “easy” if you’re using a computer with a text editor, I’m not so sure if you’re using either a mobile phone or a tablet …
Here the operational phrase is “Unicode is your friend”.
The following website has a built-in “Copy” HTML code pop-up, you want the “Based on Equality” block near the top of the page.
URL 1 : https://symbl.cc/en/collections/mathematical-signs/
_ _ _ _ _
This, more comprehensive, alternative website requires the use of “Ctrl-c … Ctrl-v” instead, after selecting the “go to other block” option of “U+2200 … U+22FF : Mathematical Operators” option.
URL 2 : https://www.utf8-chartable.de/unicode-utf8-table.pl
I think you were looking for “U+2260 : Not equal to” …”≠”.
NB : I always thought a “squiggle atop half an equal” was the “approximately equal to” sign, not the “not equal to” one.
“U+2243 : Asymptotically equal to” … “≃” … would tend to agree with my (admittedly unreliable) memory.
_ _ _ _ _
PS : See also “U+2248 : Almost equal to” … “≈” … AKA “squiggle atop squiggle / two parallel squiggles” ???
Sigh… Nope. Although it changed the font to “Code”… There is saying – “WordPress Delenda Est” that applies.
U+2260
cntrlU2260 gave me another pageand Underlines
So, yeah, no easy…
..and I thought Jim was being sarcastic, not factual. Wet lands are not wetlands (Jim) but wet lands can be mistaken for wetlands if you really want to be an ass about it(me).
Now to find out how Mike McMillan above did the magic thing…
Ok. As bad as those climate modellers! Anybody think to use english? “wet land” is broadly equivalent to “wetlands.” There fixed it for ya!
re: “Anybody think to use english?”
But, I’m not playing by Richard Page’s rules, Richard Page is playing by Richard Page’s rules, but that does not bind anybody else to play by Richard Page’s rules.
If you’re five or six, I can understand this. If you’re 10 or 11 (‘a fifth grader’) I cut you less slack, as “wetlands” has probably not entered your lexicon (vocabulary) yet. If you’re an adult (and I presume you to be) then I cut you no slack; either you play for hilarity (possible) or obtuseness (graded as: ‘likely’).
wetlands; Plural form of wetland
noun
land:
noun
wet land
Anything ranging from ‘land’ wetted from dew to a recent rain, and such condition does not automatically make it a ‘wetland’ area as defined by the EPA.
Don’t forget the verb:
to wetland
(I know, I am taking the pizza).
wet land
Anything ranging from ‘land’ wetted from dew to a recent rain, and such condition does not automatically make it a ‘wetland’ area as “the SCOTUS has ruled can no longer be” defined by the EPA “as WOTUS.“
I was worried about the EPA asserting jurisdiction over my property, which is covered 4-6 months of the year with 2-4 feet of water. Which is connected to a stream which flows into a regional river with multiple reservoirs.
Traditionally it hasn’t been considered wetland because the water in in the form of snow, which isn’t exactly wet, but I was pretty sure it was only a matter of time until the definition of wetlands was expanded to include seasonal snowpack.
Skeptics revere truth and admit mistakes.
Still waiting for any retraction or admission of error from Michael Mann or pretty much any Climastrologer.
Good news!
The EPA can’t figure a way around the U.S. Supreme Court ruling. So they have to comply.
We’ll get the EPA completely straightened out in 2025. 🙂
Tom ==> They dodged the previous Federal Court rulings…just the way I first thought they had done again. Now, with the SCOTUS ruling, they have finally caved.
So? Do the land owners prosecuted/persecuted and with livelyhood destroyed get compensation and reimburesement or retrun of property confiscated? IIRC some were even jailed for “resisting” the authorities.
The Sacketts are modern day heroes. Most people would have buckled under and let the EPA ruin their lives. They should be thanked endlessly for pursuing their rights as Americans to run their business without unconstitutional interference from Big Brother.
Didn’t an EPA enforcer once say “…if a leaf floats in it…” its mine? Or words to that effect.
even worse is he said “if I THINK a leaf can float somewhere on your property its mine!”
rhb2 ==> Far worse, actually. They were totally arbitrary and capricious. And that is the BIG unconstitutional thing. Along with NO AUTHORITY under law.
In this day and age common sense is on perpetual trial
It’s a hard pill to swallow when you realize that such an obvious overreach is fought all the way to the Supreme court by government bureaucrats.
crazy to think how much of our world is ruled by 9 people in robes. Pure insanity. But when we finally get some wins I’ll take it. Should never have amounted to this though
Josh ==> The scary thing is that the only real protection of the very foundation of our Nation (and it has been copied my many other nations) — the U.S. Constitution — rests on the shoulders of those 9 men and women.
Steve Case ==> EPA has taken two really heavy hits from SCOTUS in the last two years. The other case was West Virginia v. EPA.
Two thoughts:
1 – Civil servants are neither.
2 – I tried to read the court’s decision and now have a headache. 🙂
As far as I can tell, all the judges agreed on the judgement, but some disagreed on the reasoning behind the judgement. So it seems that even the most left leaning judges still agree on the importance of private property.
The bureaucrats and left wing politicians will chip away at our rights and change the country to a tyranny. That seems inevitable. Sometimes the only thing protecting us is the Supreme Court, and mostly that still seems to work … just mostly, not inevitably.
Kip, there is far more to this SCOTUS slap down of the EPA and U.S. Army Corps of Engineers (USACE) than simply puddles and isolated wetlands and the “significant nexus” argument. The ruling dealt with the broader question of what does constitute “navigable waters” based on legislative history and the intent of Congress. Since its inception in the Clean Water Act in the early 1970s, there has been continued controversy over how far up the watershed the definition extends.
As a rough analogy, consider the above-ground parts of a tree. Beginning with the trunk and upward, it divides into major limbs, then smaller branches, then twigs, and finally the leaves. The radical conservationists (and EPA bureaucratic powerbrokers) argue that if a leaf falls or if one breaks off a twig, the entire tree significantly suffers. Thus, over the years, the agencies have progressively moved the Waters of the U.S. (WOTUS) boundary up the watersheds to include perennial (always wet and flowing) streams, intermittent streams (seasonally dry), ephemeral streams (mostly dry except after significant precipitation or melt), manmade ditches and conveyances, field scale upland rivulets only wet when it rains, to dry uplands that are somewhat close to one of the above. Wetlands, connected or not, fall somewhere into that continuum (the specific case before the Court). In essence, EPA and USACE have sought to use the broadest interpretation of the Clean Water Act to regulate all human activity at all locations.
In this ruling, SCOTUS attacked EPA’s standing argument. Aside from the obvious isolated wetlands issue at hand, the court more broadly took aim at where in the watershed Clean Water Act jurisdiction stops based on the law and legislative intent. Justice Thomas had the most clear and well-researched opinion on the matter, while the leftist members of the court only appealed to emotion with no legal arguments to back their position. However, in the end, the SCOTUS ruling was unanimous. This has massive implications for development, the cost of development, and common, everyday human activities where the potential impacts are negligible or easily controlled. (Note: the states can choose to regulate even further within their own borders. Even we “knuckle-dragging cowboys” from Texas are often more rigorous when it comes to water quality control.)
The key.to this decision can be found in these words:
“… relatively permanent, standing or continuously flowing bodies of water …”
To put it simply, if it ain’t flowing, it ain’t going.
Effectively, the SCOTUS ruling constrains federal jurisdiction to interstate waters (rivers, lakes, wetlands) that are connected by permanent, continuously flowing and/or standing water. This excludes intermittent streams, ephemeral streams, disconnected wetlands and anything else up watershed from there.
In numerous places within the revised regulation, EPA (with objections) repeats these words.
Unfortunately, the battle is far from over. My subject matter experts are cautiously advising their clients because the implementation guidance that EPA and the USACE will soon issue based on the revised regulations will assuredly push their power to or beyond the limits, suggesting further court battles to come. Bureaucrats don’t easily give up power, and recent attitudes evident across all branches of the current administration, suggest that EPA will likely wantonly ignore the law and SCOTUS.
Just read the EPA administrator’s press release regarding the issue.
From EPA’s press release:
“While I am disappointed by the Supreme Court’s decision in the Sackett case, EPA and Army have an obligation to apply this decision alongside our state co-regulators, Tribes, and partners,” said EPA Administrator Michael S. Regan. “We’ve moved quickly to finalize amendments to the definition of ‘waters of the United States’ to provide a clear path forward that adheres to the Supreme Court’s ruling.
This is a wholly inappropriate statement coming from a bureaucratic political appointee entrusted with faithfully executing his duties under the law. Law has spoken. His disappointment is irrelevant but telling. It telegraphs that EPA will do everything they can to evade the law and expand their jurisdiction to the absolute limit.
Stay tuned.
pflash ==> Yes, certainly, the ruling and its agruments are far deeper than can be covered in 1,000 words here. There well may be further required challenges to the Amended WOTUS rule, which is why some who approved of the ruling are still disappointed with the Amendments.
For those interested in such things (all two or three of you) I present, “Evolution of the Meaning of “Waters of the United States” in the Clean Water Act. Updated March 5, 2019”
https://tinyurl.com/4nd2j2jf
roving ==> Terrific — thank you for the link — I have filed the report alongside the original research on this topic.
When it rains hard I get a puddle in my sidewalk. Can I now sweep it without a permit?
Denis ==> Yes and you can thank the Supreme Court for the privilege.
You can thank the Supreme Court for the *right*.
Yes, and you and your boys can go out and pee on a tree without your bladder being ruled a pond.
“story tip”
According to
https://www.nj.gov/education/standards/climate/learning/gradeband/index.shtml
“New Jersey became the first state in the nation to include climate change across content areas” (Google: New Jersey Student Learning Standards). These standards cover K-12 and encourage a focus on climate change in teaching the core subjects arts, health, science, social studies, language, computers, and life skills.
I would be more inclined to celebrate if we had not already crossed the line into rogue agencies faithfully supporting the principles of a banana republic.
Ook.
And the Constitution does not jump off the page and enforce itself. But what really scares the heck out of me is what has been going on in Canada on all these woke issues- They have a constitution with supposed civil liberties, property rights , pursuit of and protection of life and liberty. But it now is not worth the electronic bits it is printed on.
Many tyrannical governments have “Bills of Rights” or the like in their constitutions, e.g, that bastion of freedom, Russia. What distinguishes the Constitution of the United States of America is its structure, i.e., the balance of power among the 3 branches.
There is nothing exactly like it in the world.
And it is our last, best, hope for Liberty.
Russel Brand has a good little bit called “ So the rumors are true” on you tube which in the second half touches on the hypocrisy of the CAGW elite ( Obamas mansions, sea walls ( granted an exception by regulators) and the systemic pervasive corruption through and through.
I also agree with Russell that only a massive sea change paradigm shift or return to original principles ie US constitution limited federal power ,dare I say the word r…. it has to be a massive change now , not just a fleeting attempt to enforce a principle mired in regulatory miscellaneous ramblings that should be blatantly obviously a violation of first principles.
You are dreaming. its not going back to the 1870s any time ever.
> “The EPA will comply with SCOTUS”
No, EPA will seek every opportunity to circumvent, subvert and flat out ignore this ruling whenever they think they can get away with it. Bureaucracies never surrender authority.
This story is clear – and corrects the earlier one-. EPA was defeated in court and has changed its rules.
Has yet to publish any such change.
Patience is still needed before using any declarative statement.
No, don’t slow down. The speed with which you and probably some others pointed out that the EPA had defied SCOTUS may well have been a factor in their backing down. OK, so something changed after you first wrote – if you wait for all possible changes you will never write.
Publish and be damned (Arthur Wellesley) or in this case, publish and damn them.
Mike ==> Thanks for the encouragement — but it seems that I got my piece researched within hours of their page going up live on the web. EPA must have sent Press releases to the NY Times the evening before — oddly, they failed to send me a copy!
You mean some bureaucrat with the EPA that attended an leftist “institution of higher learning” with a “journalist” (propagandist) from the NY Times leaked the in formation to his or her or whatever’s buddy?