Editorial: SCOTUS curbs WOTUS, but Congress must act

The U.S. Supreme Court (SCOTUS) this past week acted to finally curb, but not eliminate, the unfettered power of the Environmental Protection Agency and the Army Corps of Engineers to control every stream, ditch, wetland or muddy hoof print that might eventually spill a few drops of water into any rivulet that might occasionally be navigable with an inner tube.

Under the agencies’ vague definition of what exactly are waters of the United States (WOTUS) under the Clean Water Act of 1972, the existence of any water on one’s own property promulgates the necessity to obtain a permit before doing anything that might “pollute” that water with anything, including dirt.

In a unanimous decision in Army Corps of Engineers v. Hawkes Co., the court said property owns have a right to sue in court over permitting determinations. The federal agencies had circuitously contended that property owners could only go to court once decisions were final, but essentially argued that all permitting decisions are reviewable and potentially reversible and therefore never final.

In December 2010, the Hawkes Co., which mines peat for use on golf courses among other uses, applied for a permit to mine peat on a 530-acre tract of property it owns in Minnesota. The Corps of Engineers told the company they would have to do numerous tests that would cost more than $100,000.

In February 2012, the Corps determined the land contained “water of the United States” because its wetlands had a “significant nexus” to the Red River of the North, located some 120 miles away. The owners appealed and got the same result, essentially a denial of permission to mine their own property.

In the opinion of the court, Chief Justice John Roberts points out the definition of WOTUS used by the EPA and the Corps includes “land areas occasionally or regularly saturated with water — such as ‘mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, [and] playa lakes’ — the ‘use, degradation or destruction of which could affect interstate or foreign commerce.’ The Corps has applied that definition to assert jurisdiction over ‘270-to-300 million acres of swampy lands in the United States — including half of Alaska and an area the size of California in the lower 48 States.’”

Roberts also noted that a specialized individual permit, such as the one sought by Hawkes, on average costs $271,596 and 788 days to complete, not counting any mitigation costs that might be required. He said the permitting process can be “arduous, expensive, and long.” No kidding. He left out futile.

The Corps told Hawkes after its denial of a permit that it could appeal administratively, but not judicially, or simply do the work without a permit and risk a fine of $37,000 a day and criminal prosecution.

The court said Hawkes has a right to sue in court. So, it curtailed the process but did not put a stop to the draconian obstruction of the right of personal property and burdensome expenses.

In a concurring opinion, Justice Anthony Kennedy, joined by Justices Clarence Thomas and Samuel Alito, said that the EPA and Corps “ominous reach” on interpreting the Clean Water Act “continues to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation.”

Nevada Attorney General Adam Laxalt, who along with 22 other attorneys general filed an amicus brief in this case, applauded the judgment.

“This unanimous U.S. Supreme Court decision vindicates our position that the Obama administration has continually attempted to avoid the rule of law and judicial review of its unlawful actions,” said Laxalt. “The Obama administration seems determined to move as far and as fast as possible to unilaterally change our constitutional system and our congressional laws. … Fortunately in this case, our checks and balances have protected Nevadans from truly unprecedented federal overreach.”

Congressman Cresent Hardy also lauded the court ruling, saying, “The Court’s unanimous ruling in the Hawkes case reins in an unchecked executive branch.  Property owners should not have their lands locked up by a ‘final agency action’ and be forced to go through a prohibitively expensive permitting process without the ability to appeal the decision. Thankfully, the Supreme Court agrees.”

But the reality is that this decision, while welcome, merely puts a Band-Aid on a hemorrhage. Congress must rewrite the Clean Water Act and properly define WOTUS for the rapacious federal agencies lest they grind commerce in this country to a halt.

The House and Senate passed resolutions that would have blocked the EPA water rule, but in January the Senate failed to override Obama’s veto.

A version of this editorial appears this past week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

38 comments on “Editorial: SCOTUS curbs WOTUS, but Congress must act

  1. A.D. Hopkins says:

    When you’re up to your butt in bureaucrats, it’s hard to remember it’s about draining a swamp.

  2. Steve says:

    Or making a lake out of a swamp.

    I know a guy in Utah who did that.

  3. Rincon says:

    As usual, there’s a lack of common sense all the way around. Give the EPA the power to micromanage and they will. Leave it to the mythical environmental responsibility of the individual and individual businesses, and things go to hell just as dependably. One good example is of the 415 dead zones that have been identified in our oceans, up from 10 in 1960. The primary cause is the application of excessive fertilizer, mostly unregulated, by millions of people, all with good intentions.

    Decades ago, farmers and homeowners could fertilize to their hearts’ content without causing any undue harm. No longer. This isn’t your grandfather’s world and his answers don’t work today.

    BTW, I just checked out NASA’s latest graph of the Earth’s temperature. No evidence of the Conservatives’ mythical pause so far as I can tell. Now you see it, now you don’t. That’s OK. No harm in being wrong. Well, except for screwing up the world for your kids.

  4. Anonymous says:


    Teach a man to fish and he will fish until there are no more fish.

    Teach a man that profit is all, and there’s profit in dumping toxic waste in your water, and soon you will die of thirst or poisoning.

  5. Steve says:

    While a man who builds a lake and stocks it with fish enough so the fish procreate will eat for a lifetime.

    I know just such a person who did build his own lake, on his own land. The feds would have prevented him under that WOTUS regulation.

  6. Rez says:

    Take note that every stock pond in the country is in violation, because those pesky cows will crap in it and stir up mud.

    Wait til that gets used against ranchers by “animal rights” interests.

  7. Nyp says:

    Today’s Second Amendment moment: “A shooting inside a downtown Orlando, Fla., nightclub led to mass casualties, according to the police.”

  8. A little premature again Nyp…a suspected Islamic terrorist wearing a suicide vest attacks a “gay” nightclub opening fire on the patrons…http://www.dailymail.co.uk/ushome/index.html

  9. I saw it yesterday afternoon online. The Sun ran a brief AP story online 17 hours, but I’ve not seen anything in the R-J.

  10. Nyp says:

    Boy, you sure can kill a lot of people very quickly with a. AR-15

  11. nyp says:

    Perhaps we should not permit people on terrorist watch lists to purchase AR-15s

  12. deleted says:

    Well, seems to me that the 2nd Amendment protects even a convicted murderers’ rights to bear arms in prison so it’s hard to see how just because a person gets on a watch list ought to have their rights impaired.

  13. Steve says:

    Yeah, anti gay terrorist kills/injures more then 50 people, so the solution demanded is to take away weapons (not just firearms, weapons) from everyone else so those same terrorists can have even MORE targets to kill.

    “common sense reforms”

  14. Steve says:

    Correction, more than 100 dead/injured.

    And, apparently, we now need to have “common sense other device” laws and controls.

  15. “nor shall any state deprive any person of life, liberty, or property, without due process of law …”

    At least those in prison were afforded due process of law.

  16. Steve says:

    ISIS just claimed “responsibility” for the Orlando terrorism attack.

    There you have it, this is NOT a mass shooting. It is an outright act of terrorism and ISIS would have made sure their member would have had whatever weaponry required to accomplish this attack no matter what “common sense” gun laws the USA could ever have in place.

  17. Steve says:

    The Second Amendment provides for a citizen militia, in the face of this latest act of terror, its is time to let the Second Amendment work for real.

  18. “Finally, we need to keep guns like the ones used last night out of the hands of terrorists or other violent criminals. This is the deadliest mass shooting in the history of the United States and it reminds us once more that weapons of war have no place on our streets.” — Hillary Clinton.

    He was a security guard!

  19. deleted says:

    So, if I understand Thomas, so long as people are afforded “due process” their 2nd Amendment Rights are justifiably impaired?

  20. The people may deprive someone of life, liberty or property so long as there is due process.

    Yes, rights may be forfeited due to one’s misbehavior.

  21. Nyp says:

    Orlando: AR-15
    Aurora: AR-15
    Sandy Hook: AR-15
    San Bernardino: AR-15
    Umpqua Community College: AR-15

  22. deleted says:

    To be clear, you referring to procedural due process?

  23. The AR-15 is a semi-automatic rifle. It’s firing mechanism is no different from a semi-automatic pistol or a semi-automatic shotgun. Semi-automatic technology has been in use since 1885. The first report on the tragic shooting in Orlando that I heard on the radio this morning…misidentified the weapon as an AUTOMATIC rifle. NOT TRUE…then it was called an ASSAULT RIFLE…again mistaken, finally it’s now being called an assault STYLE weapon. Which simply means it’s “dressed up” to look like a military style weapon. In actuality…it’s no different than a standard .223 caliber semi-automatic rifle used to hunt deer or elk, target shooting or for home protection.

  24. Steve says:

    Orlando, act of terror on US soil by ground troops committed by ISIS.

    This requires the citizen militia be fully enabled to respond and prevent these incidents as they increase.

  25. As usual Nyp is full of shaving cream…
    Aurora: Smith and Wesson M&P15
    Sandy Hook: Bushmaster XM15-E2S
    San Bernadino: DPMS GII, Smith and Wesson M&P15
    Umpqua Community College: five handguns

  26. Anonymous says:

    I only all those guys partying at 2 a.m. in a nightclub had been carrying, this would never have happened

  27. More from the religion of peace: “Imam Speaking in Orlando Said Gays Must Be Killed Out Of Compassion.” https://pjmedia.com/homeland-security/2016/06/12/orlando-night-club-attack-by-known-wolf-terrorist-previously-investigated-by-fbi/

  28. Steve says:

    So, the liberal contingent wants everyone to be totally unarmed as they cower in fear while being shot at by enemy terrorists on our own soil.

    the things we learn about liberalism on this page

  29. deleted says:

    Bringing the conversation back to somewhere close to the original discussion. The reason why the country has, with consistent resistance from the anti-environmental radicals in this country, tried to stop the damage being done to the environment.


    And I lived along Lake Erie long enough to know how discussing these blooms are and everyone understands that it’s the farming that’s causing the significant part of the problem. And the runoff, from even draining ditches, on private land, impacts the bloom, which is why there is a need for the regulations that the radical anti-environmentalists have fought.

  30. Anonymous says:

    And there’s more….

    The anti-environmental radicals will stop at nothing so that they can continue to make money; even when it is at the expense of the lives of people who have to live on this planet.


    Look, as the article points out, NO ONE ought to be surprised about it, but shouldn’t we be able to do something about it?

  31. Oh and Nyp…you were wrong about Orlando too…it WASN’T an AR-15…it was a Sig Sauer MCX.

  32. Rincon says:

    “Look, as the article points out, NO ONE ought to be surprised about it, but shouldn’t we be able to do something about it?”

    Don’t hold your breath. According to the legal system in this country, anyone who lies to an individual in order to induce them to fork over money commits fraud. Anyone lying to millions for the same purpose is exercising the right to free speech. Conservatives support this with the possible exception that they might want to eliminate penalties for fraud altogether.

  33. […] attorney general’s office also has been actively involved in the waters of the United States (WOTUS) rules that were being promulgated by the Environmental Protection Agency and the Army Corps of […]

  34. […] waters of the United States (WOTUS) rule created under the Obama administration, which attempted to usurp dominion over every stream, ditch, wetland or muddy hoof print that might eventually spill a few drops of […]

  35. […] General Adam Laxalt, who along with 22 other attorneys general filed an amicus brief in this case, applauded the judgment at that time, saying, “The Obama administration seems determined to move as far and as fast as […]

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