Waters uncertainty remains

By Leisa Boley-Hellwarth

Remember just months ago in May of 2023 when the U.S. Supreme Court unanimously decided Sackett II? It was a landmark decision that seriously restricted the power of the EPA and the Army Corp of Engineers. The Court narrowed the criteria by which certain wetlands and waterways may qualify as “Waters of the US” which the Clean Water Act protects. Specifically, the ruling found that the Clean Water Act covers only adjoining wetlands, a reading that excludes wetlands separated from jurisdictional waters by man-made dykes or barriers, natural river berms, beach dunes, and the like that had previously been protected by 8 different Presidential Administrations.

This was a huge decision. The primary holding of Sackett II is: The Supreme Court limits Clean Water Act jurisdiction over “adjacent wetlands” to those having a continuous surface connection to bodies that are “waters of the United States” in their own right, with no clear demarcation between the “waters” and the wetlands. The Court stipulated that the water body’s designation should be obvious to the public. And all of the Supreme Court justices agreed, although they used various legal analyses and reasoning to reach the same conclusion.

Apparently, the Army Corp of Engineers never got the memo that detailed Sackett II. Or the Corp decided to just ignore it. Perhaps the agency believed that “you can’t fight city hall.” It’s a common expression that means it is difficult or impossible for individuals to successfully challenge the decisions or policies of a large bureaucracy. The phrase suggests that the government has too much power and resources, and that individuals who try to fight against the bureaucracy are unlikely to win or even to be able to afford the fight.

Currently, there are two pending federal cases where the Army Corp of Engineers appears to be completely ignoring the Supreme Court in Sackett II. Our balance of powers means that the legislative branch writes the laws; the judicial branch interprets the laws; and the executive branch enforces the laws. Perhaps someone needs to explain to the Army Corp of Engineers that they enforce the law as interpreted by the judicial branch. And the Sackett II decision was clear about restricting governmental authority regarding the interpretation of Waters of the United States.           

That’s the position of parties in two separate federal cases. Dan Ward of Decatur County, in Central Iowa, a quarter of a mile above the Missouri line, cannot build a pond on his 420-acre farm because the Army Corp of Engineers claims it has the power to regulate a hiking trail, not a body of water. The property in contention here is literally a dry depression that a governmental employee saw water drops in after a rain. The dry ravine runs half-a-mile across the land, over 100 miles from the nearest navigable river to be “Waters of the United States.” The Corp is blatantly ignoring Sackett II and denying Ward the use and enjoyment of his property. And Ward has been a steward of the land for many years. His farm includes 200 acres of timber, 180 acres of prairie, and 40 acres of row crops. His trouble started when he submitted plans for a pond to the Iowa Department of Natural Resources, who forwarded the paperwork to the Army Corp of Engineers.

Meanwhile, in North Carolina, “Val” Valentine and his son, Skip Valentine, are facing millions in fines from the Army Corp of Engineers who filed a cease and desist in 2018 and accused them of filling federally regulated wetlands on their property without a clean water permit. In 2016, the Valentines began buying 1,700 acres of rough timberlands for forestry and recreation. The land crisscrossed with old, dilapidated logging roads. They are located along the Roanoke River and a smaller stream (Devils Gut) in Eastern North Carolina.

The Valentines created a business plan to (1) cultivate a complex forest ecosystem for healthy hardwood timber in the long run and to (2) financially support the short-term with ecotourism, hunting and fishing. The Valentines went to work upgrading and extending the long-existing network of forest roads on their land consistent with state and federal best practices. In fact, state forestry officials drew maps calling for the very improvements that the Corp said violated the Clean Water Act.

Despite the contentious approach of the Corp, the Valentines tried to work with the bureaucrats and even donated land along the river to the state. The onslaught of the Corp continues.

Both Dan Ward and Val and Skip Valentine are represented by the Pacific Legal Foundation, at no charge. Ward and the Valentines are now making a full-throated defense of their right to make productive use of their own land. The Pacific Legal Foundation is uniquely qualified as they represented the Sacketts in their multiple appeals to the Supreme Court.

A hiking trail in Iowa and logging roads in North Carolina — how are these obvious wetlands to the public? Make it make sense. 

Leisa Boley-Hellwarth is a dairy farmer and attorney. She represents farmers throughout Ohio from her office near Celina. Her office number is 419-586-1072.

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