Facing fines up to $66,712 per day per violation of the Clean Water Act (CWA), the owners of an Idaho ranch are suing their accuser – the U.S. Environmental Protection Agency (EPA) – arguing that the real lawbreaker is EPA for violating the Supreme Court’s 2023 ruling limiting the scope of the agency’s power to regulate wetlands.
In a complaint filed with the U.S. District Court for the District of Idaho, EPA alleges that family-owned Ace Black Ranches (ABR) in Bruneau, ID failed to secure a Clean Water Act dredge-and-fill permit from the agency prior to engaging in a sand and gravel operation which, the agency says, discharged pollutants into the Bruneau River and nearby wetlands.
EPA’s action is based on two inspections the agency carried out on the ranch in May and June 2021 – two years before the Supreme Court in Sackett v. EPA ruled that, for EPA to have regulatory authority over a wetland, that wetland must have a “continuous surface connection” to navigable “waters of the United States” (WOTUS). The phrase “continuous surface connection” replaced the vague “significant nexus,” standard rooted in an earlier High Court decision that failed to deliver clarity over which bodies of water fall under federal jurisdiction.
The 1972 Clean Water Act gave EPA and the U.S. Army Corps of Engineers authority to regulate discharges into navigable waters of the United States – rivers, streams, bays, oceans, etc. – but was silent on how other bodies of water, such as isolated wetlands, were to be handled. That omission led to a half century of confusion and litigation until the Supreme Court’s Sackett ruling settled the issue.
Attorneys from the Lakewood, Colo.-based Mountain State Legal Foundation (MSLF) who represent the ranch argue in a motion to dismiss filed with the U.S. District Court for the District of Idaho that EPA ignored the Sackett decision.
“Specifically, plaintiff [EPA] has failed to plausible allege that ABR discharged any pollutants into any wetland that has a continuous surface connection with the Bruneau Rover such that it is difficult to determine where the river ends and the wetland begins,” the MSLF attorneys wrote. https://www.wlj.net/top_headlines/ranch-sued-over-cwa-presses-court-to-follow-sackett/article_b9353b5c-0ee3-11ef-b9fc-afe239805dfa.html
'Abusive Approach to Federal Regulation'
The ranch’s attorneys expressed grave concern about the implications of EPA’s action in light of the Sackett ruling.
“Dismissal is proper here because plaintiff has not bother to allege, much less properly allege, that ABR discharged any pollutants into wetland with a continuous surface connection to the Bruneau River … And dismissal is important here for a broader policy reason: Plaintiff’s conclusory allegations show an abusive approach to federal regulation that the Supreme Court looked to curb a year ago in Sackett v. EPA,” MSLF argues.
EPA alleges that ABR’s discharged pollutants not only on the ranch but also on surrounding private and public property. What appears to have drawn EPA’s ire was the ranch’s installment of a center-pivot irrigation system, a practice designed to improve operational efficiency, and one customarily approved by federal agencies. Saying the sprinkler system led to the destruction of wetlands, EPA wants the court to order the ranch “at its own expense and direction of EPA” to restore waters on the site and obtain CWA permits, Western Livestock Journal (May 16) reported.
But Mountain State Legal Foundation says EPA – in the post-Sackett world -- has no such authority.
“Here, plaintiff’s allegations show a disregard for the Supreme Court’s attempt to make the law clear,” the attorneys pointed out. “Plaintiff has been harassing ABR for at least three years. And now, despite spending at least seven days inspecting ABR’s property and ‘collecting evidence,’ plaintiff has sued ABR for allegedly discharging pollutants into wetlands covered under the Clean Water Act without actually alleging any factual content that would allow the court to ‘draw the reasonable inference’ that plaintiff is correct.”
In a press release, MSLF adds “ABR is boldly challenging the EPA’s overreach, not only safeguarding their financial stability, but also defending their very way of life.” https://mslegal.org/press-releases/mslf-launches-new-case-challenging-the-epa/
Pivotal Case
The case will be watched closely because it involves the first legal action by EPA in which the agency is asserting regulatory authority over a wetland on private property since the Supreme Court last year sharply curtailed the agency’s jurisdiction under the CWA. If the court rules in EPA’s favor, the agency will be encouraged to stick its nose under the proverbial camel’s tent again, hoping to recoup some of the authority it lost under Sackett. On the other hand, a victory by the Idaho ranch will assure rural landowners nationwide that – for the foreseeable future -- they have less to fear from an overreaching EPA.
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Bonner Russell Cohen, Ph. D., is a senior policy analyst with CFACT.
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