Remind me again why any reasonable person expects the federal government to obey the law.
The Trump administration this week gravely imperiled the nation’s water supply by curtailing federal regulations over dry land. Or at least that’s the story the media is hustling. A Washington Post headline epitomized the fretting: “Trump proposal would limit protections for U.S. waterways” by narrowing the definition of wetlands.
The Post did not mention that mere puddles or land that is dry 350 days a year have been categorized as “waters of the United States” under the Clean Water Act. Perhaps the wackiest example is the Environmental Protection Agency’s (EPA) “glancing geese” test. If migrating geese glance down and consider stopping at a water hole, and the geese are on a flight that crosses state lines, EPA automatically has jurisdiction over that water hole and the surrounding land. The EPA even claimed a right to prohibit landowners from permitting photographers on their land to take pictures of the birds.
Congress specified in the Clean Water Act that normal farming practices and operations should be exempt from federal wetlands restrictions. But the Army Corps of Engineers evaded that leash on its power by issuing a “clarification” of federal law that bizarrely announced that cranberries, apples, blueberries, hay, and alfalfa are not agricultural commodities—and thus that those farmers were subject to the Corps’ control.
In 1993, the Bill Clinton administration issued new guidance that banned any activity with “environmental concern” on wetlands. A federal attorney declared that, under the new policy, the Army Corps “could require a permit to ride a bicycle across a wetland.”
“What is a wetland?” is the DC version of “How many angels can dance on a pinhead?” Since 1972, federal agencies have changed the definition of wetlands jurisdiction fourteen times. Up to 100 million private acres fall under federal sway, depending on the definition of wetlands. Because the Clean Water Act imposes strict criminal liability, farmers plowing their own fields can be treated like midnight dumpers heaving barrels of dioxin into a river.
In 2015, the Barack Obama administration launched a massive propaganda campaign to place far more private land under EPA jurisdiction. EPA spent tax dollars on a covert publicity campaign on Twitter, Facebook, and YouTube. In 2015, the Government Accountability Office condemned EPA for running an illegal propaganda campaign—especially since recipients were unaware EPA was sending the messages. No EPA official was fined or jailed for violating that federal law.
In 2017, President Donald Trump groused that Obama’s EPA wetlands rule could apply to “nearly every puddle or every ditch on a farmer’s land or everywhere else that they decide,” which he labeled “a massive power grab.” In 2020, the Trump administration issued new wetlands regulations to curb that regulatory tyranny. But the Trump White House failed to get Congress to enact its regulations into law, thereby guaranteeing more ping pong in the rule books.
In 2021, a federal judge struck down Trump’s regulations in large part because the Joe Biden administration was planning new regulations to redefine the “waters of the United States.”
Before Team Biden could officially re-write the rule book, the Supreme Court unanimously ruled in 2023 that the EPA had unjustifiably hogtied Michael and Chantell Sackett who started building a home on the small vacant lot they purchased in 2005 in a residential subdivision near Priest Lake, Idaho.
EPA demanded the Sacketts get a federal Clean Water Act permit to build their house, their lawyers complained, because “Priest Lake is a navigable water; a non-navigable creek connects to Priest Lake; the non-navigable creek is connected to a non-navigable, man-made ditch; the non-navigable, man-made ditch is connected to wetlands; these wetlands, though separated from the Sacketts’ lot by a 30-foot-wide paved road, are nevertheless ‘similarly situated’ to wetlands alleged to exist on the Sacketts’ lot.” EPA persisted even though the agency “recognizes” that “no water at all — surface or subsurface — flows from the Sacketts’ lot to the wetlands or to the ditch across the street,” Pacific Legal Foundation lawyers complained.
In its 2023 decision, the Supreme Court ruled that federal regulatory authority “extends to only those wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right.” Justice Samuel Alito, writing for the court, condemned the existing policy for “putting a staggering array of landowners at risk of criminal prosecution for such mundane activities as moving dirt.”
But the Biden administration simply ignored the Supreme Court decision, refusing to roll back the regulations the court condemned.
This week, EPA issued proposed regulations to compel federal agencies to finally obey the nation’s highest court. EPA chief Lee Zeldin declared, “Democrat administrations have weaponized the definition of navigable waters to seize more power from American farmers, landowners, entrepreneurs, and families. No longer should America’s landowners be forced to spend precious money hiring an attorney or consultant just to tell them whether a Water of the United States is on their property.”
But a New York Times headline howled, “E.P.A. Rule Would Drastically Curb Protections for Wetlands.” The Washington Post, bolstering the charge against regulatory relief, declared that the Trump proposal “could significantly decrease the amount of federally protected wetlands.” But if Congress, courts, and seven presidents disagree on the meaning of wetlands, maybe the only “decrease” is in environmentalists’ anti-development fantasy life.
Unfortunately, it is unlikely that the latest regulatory revision will be the end of this bureaucratic horror story. Unless the Trump administration can sway Congress to codify the new regulations in law, a Democratic administration could revive the Obama-era sweeping bans on landowners.
Wetlands policy vivifies how the Fifth Amendment’s proviso that property cannot be taken “without due process of law” is void when the law is perpetually in flux. But we already knew that few people inside the Beltway give a damn about constitutional rights.
