TSCRA_1-3Page.pdf 1 13/05/2013 4:19:47 PM
N RANCHING
atural Resources
drology, studies of fi sh, botany, etc. What is or is not water of the
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United States is so confused that no one really knows. Taking advan- tage of this confusion, the EPA has jumped at the chance of increasing its authority by issuing regulations expanding its defi nition of “waters of the United States.” The court sys- tem seems unable to stop them.
Rapanos v. United States The confusion of exactly what
are waters of the United States reached the U.S. Supreme Court in 2005. The case of Rapanos v. United States involved the issue of what are “waters of the United States” to decide whether the EPA had authority in a particular Clean Water Act case. It was hoped this case would
solve this defi nition question once and for all. However, that did not happen. Today, the 9-person U.S. Su-
preme Court in reality boils down to the vote of 1 justice on many important cases, and that was true in Rapanos. There are 4 conservative justices,
4 liberal justices and Justice Ken- nedy, who is conservative on some issues and liberal on others. In Rapanos, the Supreme Court
split its vote 4-1-4, with the 4 con- servative justices deciding there was no EPA jurisdiction, 1 justice (Justice Kennedy) concurring that there was no EPA authority but for differing reasons, and the 4 liberal justices dissenting with the view that there was EPA jurisdiction. Each vote wrote its own opinion,
giving 3 versions as to the outcome of the case and 3 defi nitions of what are “waters of the United States.” This has caused an unbelievable void in knowing what EPA can and cannot do.
46 The Cattleman May 2014 The essence of the 3 opinions
is telling. The conservatives held that waters of the U.S. include only “relatively permanent, standing or continuously fl owing bodies of wa- ter” such as streams, oceans, rivers, and lakes.” Justice Scalia writing for the
conservatives continued that “only those wetlands with a continuous surface connection to bodies that are waters of the United States in their own right are covered” by the Clean Water Act. That is fairly easy to understand. Justice Kennedy, however, con-
curring in the judgment that the EPA was wrong but for different reasons, said there would be EPA jurisdiction if the wetlands “possess a signifi cant nexus (connection) to waters that are or were navigable- in-fact or that could reasonably be so made.” Sadly, Justice Kennedy did not
defi ne the “nexus,” and even to- day no one really knows what that means. The liberals stated that no sur-
face water connection is needed to be waters of the U.S., seeming to give EPA authority over just about anything. That there is confusion on the
law as to what are “waters of the United States” was perhaps most clearly outlined by federal Judge Robert B. Propst when he refused to hear an EPA Clean Water Act case, saying “I will direct the Clerk to reassign this case to another judge for trial. I am so perplexed by the way the law applicable to this case has developed.” With all of this total confusion
and vacuum as to what are waters of the U.S. that the EPA would have authority over, the EPA is stepping in and writing its own extremely broad defi nitions to give itself au-
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