This year, the U.S. Supreme Court is hearing a case, Sackett v. EPA, which may decide whether “navigable waters” in the Clean Water Act includes such Mission Creek in Santa Barbara, above and the wetlands near Elwood Bluff.
This week’s torrential rains were a grim reminder of the damage done by the flooding some five years ago where the Thomas Fire had burned the vegetation that would have prevented at least part of the soil from forming the “mud river” that destroyed so much on its trip to the Pacific Ocean.
So, who is “controlling water in Santa Barbara?”
Congress, in 1948, took control of “navigable water” by passing the Federal Water Pollution Control Act of 1948 and later amended it with the Clean Water Act of 1972, in order to “restore and maintain the chemical, physical, and land biological integrity of the nation’s water.”
The Clean Water Act functions, in part, by requiring a permit prior to discharging pollutants into any “navigable waters,” which are defined as “the waters of the United States (WOTUS), including territorial seas.” Amazingly, even after 50 years, in 2023 the Supreme Court is hearing a case, Sackett v. EPA, that may decide whether “navigable waters” includes such places as Mission Creek in Santa Barbara and the wetlands near Elwood Bluff. How can this be?
Once laws are passed, federal agencies reporting to the president interpret, administer and enforce them. For the Clean Water Act, that agency is the Environmental Protection Agency. However, agencies, such as the EPA, are just that: “agents.” As “agents,” their jurisdiction cannot exceed the jurisdiction of the laws that empowered them. It is this restriction that has stirred controversy for so long.
In the 1980s, the EPA, in an interpretation so convoluted that it would confuse the designers of Rubik’s Cube, defined “navigable waters,” or WOTUS, as including wetlands that were adjacent to other waters identified as WOTUS. Since “wetlands” are where water covers the soil or is near the surface for at least part of the year, this was a huge expansion.
The U.S. Supreme Court, in 1985, in U.S. v Riverside Bayview Homes Inc., concluded that the EPA had the authority to regulate wetlands that were “adjacent” to navigable waters, which meant that if a wetland was classified as a WOTUS then so would the wetland adjacent to it, and so forth. This appears to include Mission Creek and multiple wetlands.
The Supreme Court, in 2001, in the Solid Waste Agency of Northern Cook County case, limited the jurisdiction of the EPA to “navigable” waterways, where “navigable” waterways meant subject to the ebbs and flows of the tides, and which might be used for interstate or foreign commerce. This does not appear to include Mission Creek or wetlands.
In 2006, the U.S. Supreme Court in the Rapanos case challenged the jurisdiction of the EPA to regulate non-navigable waterways that did not directly “abut” a navigable waterway.
However, the EPA demonstrated that the bureaucrats sometimes do not feel obligated to follow Congress or the Supreme Court. The EPA decided to determine on a case-by-case basis whether the wetland had a “significant nexus” to another WOTUS. So the EPA expanded its scope with “nexus,” which is a significant link of things, especially that are part of a chain of causation.
For example, in 2007 after the Rapanos case, the EPA issued a compliance order formally concluding that the Sacketts’ property contained a wetland subject to Clean Water Act jurisdiction because it was part of a wetland system that drained into a tributary, which fed Priest Lake in Idaho. The Sacketts objected based on the pond being solely on their land.
The Clean Water Act authorized states to create their own agencies to administer the CWA under the same jurisdictional restrictions as the EPA. Unfortunately, sometimes these agencies try to exceed “navigable waters.” For example, the Delaware Division of Natural Resources DDNR) issued a cease-and-desist order to the contractor hired to strengthen a spillway, aka a “dam,” for a pond so small that even a bath tub floater could not navigate it. Even after the DDNR admitted that they neither had seen nor could locate my pond on their maps, they still required an application on the same form used for permits to dam the Delaware River. Since this undoubtedly would lead to a hearing, the project was abandoned.
In Santa Barbara, there is the Santa Barbara Urban Creeks Council in the Creeks Division of Parks and Recreation.
President Barack Obama’s EPA in 2013, without congressional approval, in a “reversal” that would make the former professional wrestler Jake-the-Snake proud, extended the jurisdiction of the EPA to more than navigable waterways.
President Donald Trump’s EPA, in yet another “reversal,” reduced the jurisdiction of the EPA back to the Supreme Court’s standards in the SWANCC and Rapanos cases of “navigable water.”
President Joe Biden’s EPA, on Dec. 30, made a move worthy of the “Spy v Spy” comic that appeared in Mad magazine, by again extending the EPA’s jurisdiction to small streams, such as Mission Creek; wetlands, such as Ellwood Bluffs; and other waterways by requiring special permits for activities, such as construction.
In 2023, the Supreme Court in Sackett v EPA is scheduled to, again, decide if the EPA should apply the CWA standard, as defined by the Supreme Court and adopted by President Trump’s EPA, that “navigable waters” are “waters used in interstate commerce.”
In Sackett, the Biden EPA is arguing that the Supreme Court should not rule since they, the EPA, some 17 years after issuing their order to the Sacketts, will decide the standards. Sadly, the EPA has its own bureaucracy that far too often is guided by the politics of presidents, or in the words of President Obama, “Elections have consequences.”
However, it appears that this year the Supreme Court may, again, decide who controls the water in Santa Barbara.
Brent E. Zepke is an attorney, arbitrator and author who lives in Santa Barbara. His website is OneheartTwoLivescom.wordpress.com. Formerly, he taught law and business at six universities and numerous professional conferences. He is the author of six books: “One Heart-Two Lives,” “Legal Guide to Human Resources,” “Business Statistics,” “Labor Law,” “Products and the Consumer” and “Law for Non-Lawyers.”
