Woe is WOTUS: When lawmakers make water policy through lawsuits

It takes guts to spend almost 50 years fighting the federal government’s Clean Water Act and then claim its failure to overcome your decades-long foot-dragging and legal maneuvering has hurt your members.

Yet that’s exactly what Zippy Duvall, the president of the American Farm Bureau Federation, claimed in a late March letter to President Joe Biden.

“Continual revisions, remands and reintroductions of WOTUS” — the Waters of the U.S. rule — “only sow confusion and ultimately dissuade future investment in climate-smart agriculture,” Duvall lectured Biden without one hint of AFBF’s large role in all the revising, remanding and reintroducing.

Duvall ended by covering his zesty spice cake with layers of lily-white farm group frosting: “America’s farmers and ranchers need a clear, consistent WOTUS rule so they can continue to protect our natural resources, operate with certainty and create jobs in their communities.”

Exactly, but what he failed to acknowledge is that since Congress won’t write a workable WOTUS rule, the U.S. Army Corps of Engineers and the Environmental Protection Agency have written multiple versions only to see their efforts to enact this key element of the 1972 Clean Water Act languish in federal courts for decades.

That’s right; in the 51 years since the Clean Water Act passed, neither Congress nor the courts have successfully defined what “waters of the U.S.” fall under the act’s jurisdiction.

Attempt after attempt has been shot down by either political, legal, or economic forces aligned against it.

The latest attempted sinking occurred March 29, when the U.S. Senate passed a “joint resolution of disapproval,” by a 53-43 vote, to reject another WOTUS version — this one just two months old. The U.S. House approved the “disapproval resolution” March 9.

The Biden administration vowed to veto the congressional action and since neither legislative chamber has the votes to override it, the Biden WOTUS version will stand — for the time being.

Still, the vote showcases just how hard compromise is with any WOTUS rule. In fact, according to the National Association of Counties, the Biden rule is a joint Corps/EPA effort “to walk the line between the Obama administration’s expansive Clean Water Rule and the Trump administration’s more narrow 2020 Navigable Waters Protection Rule.”

But even that middle ground is political quicksand, said Congress, which means more federal civil lawsuits and more years of more dirty water.

In fact, WOTUS is the focal point of three active federal lawsuits now, according Brigit Rollins, a staff attorney with the National Agricultural Law Center at the University of Arkansas.

All, she explains in a recent online webinar, raise constitutional issues that could either empower the EPA and Corps to finally fully implement the Clean Water Act under the Biden rule or, depending on the case, limit or even strip all federal agencies of the power to enforce any part of WOTUS and the Clean Water Act.

On March 19, one day before the Biden rule was to go into effect, a Texas federal judge issued a preliminary injunction against the rule’s implementation in one of the three cases. That ruling, however, applies to just two states, not the entire nation.

So, yeah, complicated.

But an even bigger court challenge — one that Rollins calls a “ticking time bomb” — is hanging fire in the U.S. Supreme Court.

That case, known as Sackett v EPA, was heard last October by the court and reexamines a narrow, 2006 court decision now used by EPA and the Corps to determine what is — and, equally important to farmers and ranchers, what isn’t — a “navigable waters” under WOTUS.

“This isn’t a challenge to the new (Biden) rule,” says the NALC attorney, but “it’s very likely that this ruling,” when announced, “is going to have a huge impact” on it. Huge, as in — again — toss WOTUS on the farm scrap pile.

All might be averted if, after 51 years, Congress accepts its responsibility to write a WOTUS rule to, as Duvall hopes, “protect our natural resources, operate with certainty and create jobs in their communities.”

And not just lawsuits, that is.