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Keep an Eye on the Courts

While we often scratch heads at the inaction of Congress, perhaps we should keep our eyes on the courts, where there’s seemingly endless actions, humorous and not so.

Witness, for example, a decision in a California court that bumblebees can legally be considered fish (stay with me here). According to California’s Third District Court of Appeals, the bumblebee, a terrestrial invertebrate, falls within the definition of “fish” as the term is used in the definitions of endangered species.

The California Endangered Species Act was designed to protect “native species or subspecies of a bird, mammal, fish, amphibian, reptile or plant.” Invertebrates are absent from the current list of protected species. But, according to the court, in a lucky loophole for insects, mollusks and other spineless creatures falling under the term “invertebrate,” the act itself defines a “fish” as a “wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn or ovum of any of those animals.”

Talk about a fishy ruling.

Expanding the definition of fish to include invertebrates makes them eligible for greater protection from the Fish and Game Commission, wrote the court. In 2018, several groups, such as the Xerces Society for Invertebrate Conservation, petitioned to list four bumblebees as endangered: crotch, Franklin’s, Suckley’s cuckoo and western.

All are now eligible for listing under the California Endangered Species Act. What’s next is anyone’s guess, but look out if you love crabs, lobster, shrimp, oysters, mussels and other tasty crustaceans.

EPA and the Supreme Court

While California wrestles with protecting bumblebees, a case is now before the U.S. Supreme Court that has national significance from coast to coast. The case examines the U.S. Environmental Protection Agency’s jurisdiction over wetlands that drain into navigable waters.

Since EPA began regulating virtually any waters that can eventually drain into some waterway, there has been widespread disagreement over how the agency decides whether a waterway is regulated under the Clean Water Act, while also making sure those decisions are fair to property owners.

“This case is going to be important for wetlands throughout the country, and we have to get it right,” said Justice Brett Kavanaugh.

This particular case involves an Idaho couple who plans to build a house near a lake and were ordered by EPA to remove sand and gravel they deposited in a wetland. The couple filed the lawsuit questioning EPA’s authority to regulate their property.

EPA’s decisions regarding what and where they can regulate have been controversial for years. Many have accused EPA of overreach when claiming an area where rain may collect can be regulated.

Some 26 states have argued in a brief that EPA’s applying the Clean Water Act to places “with only tenuous connections to navigable, interstate waters” would saddle states with implementing a “vast scheme of federal water regulation and undermine state water preservation efforts. The court should restore the CWA to its proper position, complementing states’ water-conservation efforts instead of displacing them,” the legal brief said.

In another brief submitted to the court from more than a dozen state farm bureaus, it’s asserted that in the decades since the Clean Water Act’s enactment, the federal government has tried to increase its authority by regulating features that “are wholly intrastate and that often are not recognizable as water bodies at all.” They contend it has resulted in a regulatory system that harms farmers and doesn’t reflect the original intent of Congress.

Conversely, a legal brief from dozens of environmental groups contends changing how the Clean Water Act is applied would be a “giant leap backward” that would undermine the nation’s water quality.

“Petitioners’ theory would allow the unpermitted destruction of every non-navigable tributary to a river system, so long as the fill did not make its way downstream,” the brief concluded. “Because these theories would unquestionably degrade the chemical, physical and biological integrity of our nation’s waters, they are contrary to the Clean Water Act and must be rejected.”

It's clear that any decision could have far-reaching implications for the nation’s waterways and businesses that are dependent on them. This decision is one to watch.

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