Americans are spending $1.7 billion each year obtaining wetlands permits under the Waters of the United States (WOTUS) rule of the Clean Water Act (CWA). The current regulatory regime is designed to protect wetlands and the wildlife who depend on them from environmental harm. However, in some cases, the rule is standing in the way of people who are trying to restore wetlands and protect wildlife. Take, for example, the case of Andy Johnson, who faced $16 million in fines from the EPA for creating an illegal pond on his Wyoming ranch. As the New York Times reported, Johnson…
…argued that he had gotten full approvals from Wyoming officials, and said the federal government had no business using national water laws to make decisions about the creek that meanders through the family’s eight-acre property. Mr. Johnson and his wife, Katie, had spent $50,000 — most of their savings, they said — to create the pond to water their 10 head of cattle and four horses. Dismantling it now would be ruinously expensive and destroy what has become a tiny oasis for birds and wildlife, they said.
The Pacific Legal Foundation took up Johnson’s case as part of a broader effort to challenge WOTUS, which, they argue, “is so broad and vague that federal regulators would be licensed to micro-manage property owners who are far away from genuinely navigable waters such as rivers, lakes or the ocean.”
Last week, a U.S. Court of Appeals issued a nationwide stay against the enforcement of the WOTUS rule. The stay had already been issued in 13 states where a lawsuit is pending. “A nationwide stay serves the additional purpose of maintaining nationwide uniformity while the litigation proceeds,” writes PERC Senior Fellow Jonathan Adler on the Volokh Conspiracy blog at the Washington Post:
A particularly interesting aspect of the court’s decision is that there is some question as to whether the court of appeals has jurisdiction to consider a challenge to the rule under the CWA. Specifically, there is a question whether, under the terms of the CWA, challenges to the rule are to be brought in district or circuit courts.
Whatever happens with the WOTUS rule and the lawsuits challenging it, PERC will be watching closely. Andy Johnson offers an example of how clearly defined property rights can help foster environmental stewardship. WOTUS threatens to undermine those property rights.