June 12, 2012

Bill to limit Clean Water Act passes House committee

By Damien M. Schiff Senior Attorney

Late last week, the House Transportation Committee approved H.R. 4965.  The bill, which now moves to the full House, would preclude EPA and the Army Corps from adopting the proposed Clean Water Act guidance that the agencies issued for public comment last year.  (A similar bill, S.2245, is currently pending in the Senate).  That guidance ran in to significant criticism from property rights advocates, including PLF.  In addition to forbidding the finalization of the guidance, the bill would also preclude the agencies from promulgating regulations based on the guidance’s principles.

But passage of the bills would only partially resolve the problem as Justice Alito perceived it his concurrence in Sackett v. EPA.  In that opinion, Justice Alito emphasized that a return to sanity in Clean Water Act enforcement can only be achieved through a legislative fix, and presumably a narrowing fix.  To be sure, stopping the draft guidance (which we at PLF believe is contrary to statute and the Constitution) would ensure that things don’t get worse for the regulated public, but as Mike and Chantell Sackett can attest, the status quo is already unacceptable.

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