Our view: Let Supreme Court have its say on WOTUS

Published 7:00 am Thursday, February 17, 2022

It’s rare that an issue creates near-unanimity among agricultural groups, but the federal government’s continued mishandling of the Waters of the U.S. rule has done just that.

The American Farm Bureau Federation, the National Farmers Union, the National Association of State Departments of Agriculture and scores of other agricultural groups agree that the Environmental Protection Agency and the U.S. Army Corps of Engineers should stop, back up and wait for the Supreme Court to rule on WOTUS. Then if they need to clarify WOTUS in some way, they first should listen to farmers and ranchers about their concerns.

The EPA and the Corps have been bumbling their way through WOTUS rewrites for years, ever since the U.S. Supreme Court first muddied the rule with its own interpretations. The justices used nebulous terms such as “nexus,” which sounds more like a brand of automobile than a way to manage water.

The EPA and Corps have done no better. Any middle school English teacher would flunk the agencies’ authors for their lack of clarity. Injecting legalese and vagueness in nearly every facet of the rules, a farmer would need a lawyer, hydrologist and a fortune teller to determine what, exactly, the agencies are trying to say.

First the Obama administration tried to clear up WOTUS and failed, then the Trump administration tried with some success. Then for a reason yet to be explained, the Biden administration jumped into WOTUS again. They say any project that doesn’t involve meddling by the federal government threatens clean water — despite the fact that states are also involved and perfectly capable of protecting water not within the federal government’s purview.

Which would be funny if it didn’t demonstrate how feckless the folks at the EPA and Corps are. They must not have anything else to do. What’s missing from their work product is proof the Clean Water Act needs to be strengthened. All they seem to be doing is bowing to environmental groups.

At issue is the portion of the federal Clean Water Act that includes navigable waters. Time was, navigable water meant just that — rivers and lakes on which boats can travel.

But that was too clear — and too narrow — for some folks, who want to include not only rivers, lakes and streams, but ditches, seasonal creeks and everything up to and including mud puddles.

Later this year the U.S. Supreme will take another swing at WOTUS. Hopefully, it will do a better job than before. Justices, who are trained in the law but not in plain English, are not known to be wordsmiths.

In the meantime, the eager beavers at the EPA and the Corps of Engineers would do well to take a break and let the Supreme Court decide the issue. If any changes to WOTUS are required, the justices will let them know.

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