The 1972 Clean Water Act established federal authority over the “waters of the United States.” Congress did not offer further explanation of what was covered under that term, but the two federal agencies given authority by the Clean Water Act asserted broad power.
The federal Environmental Protection Agency and the Army Corps of Engineers required farmers, homeowners, commercial and industrial concerns and developers to obtain permits before digging a ditch for water run-off, shoring up existing erosion protection structures, or draining swampy land.
This expansion of federal agency authority was accomplished without any new law passed by Congress, or even any formal regulation issued by the federal agencies, until 2015, when EPA and the Corps put in writing what it had been doing in practice, in a regulation that came to be known as the “ditch rule.”
Over half the country’s farm bureaus protested, lawsuits followed, and the election of 2016 intervened. Shortly after taking office, President Trump ordered the ditch rule to be rescinded. It was replaced with a new rule that limited federal authority to waters with a much more direct connection to navigable streams, the traditional basis of federal authority under the Constitution. That rule, in turn, was suspended as soon as President Biden took office, and officials in his EPA and Corps reverted to the expanded reach in a proposed third rule, set to be made formal in the next few months.
The U.S. Supreme Court entered the debate this January, agreeing to hear a case that would settle what Congress meant by “waters of the United States” and whether the U.S. Constitution would permit Congress to use that phrase to cover a diversion ditch on a private farm. The case will be argued next autumn.
In 2001, the court curbed the Army Corps’ aggressive assertion that a rock quarry outside Chicago, which had trapped rain water, constituted part of the “waters of the United States.” In 2006, the court prevented the federal agencies from interfering with a developer filling in wetlands which were separated by a water-tight barrier from a ditch that eventually conveyed water to a navigable stream.
In both cases, the court noted a common sense distinction between state (and local) government authority and the reach of the federal government under our Constitution.
The federal government could not control a farmer’s digging on her or his own land; if regulation were appropriate, it would have to be under the state or county. That follows from what the court decided in the case of the gravel pit outside of Chicago, rejecting the national government’s argument that they had regulatory authority because geese landed on the temporary artificial pond while flying to and from Canada.
The court took the current case because its earlier 2006 decision was open to two possible interpretations: one holding there was insufficient “nexus” between the wetlands and water that eventually flowed into a navigable stream, and the other noting the absence of a continuous surface connection between the wetlands and a navigable stream. The former test is amorphous.
Differing presidential administrations see a nexus differently. This leaves farmers at risk of continuing exactly what has happened since 2015: a Democratic president is elected and farmers have to get a federal permit to dig a trench on their own land; a Republican is elected and the requirement is removed.
The court is not composed of hydrology experts. Rather, the justices are tasked with interpreting the U.S. Constitution’s requirement that there be “interstate commerce” before the feds can intervene. Since 1824, the court has required waters to be navigable to constitute interstate commerce. Otherwise, the states were in charge. The absence of federal authority does not leave farmland unregulated. California is willing (perhaps even too eager) to regulate private farmland.
The court now has a chance to say that, at least, farmers don’t have to satisfy federal rules too.
Tom Campbell is a professor of law and a professor of economics at Chapman University. He was California’s director of finance, a state senator, and a five-term congressman. He left the Republican Party in 2016 and is in the process of forming a new party: the Common Sense Party in California.
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