June 29, 2015

Long-awaited Clean Water Act rule published

By M. Reed Hopper Senior Attorney

The final rule redefining “waters of the United States,” subject to federal control under the Clean Water Act, was published today in the Federal Register.  According to the rule, it will become effective on August 28, 2015, and will be deemed issued for judicial review on July 13, 2015.  This latter date is significant because PLF, several States and many industry groups are poised to challenge the rule in court.

As we have noted here and here, the new rule is perhaps the largest power grab in the Nation’s history.  As a pretext for clarifying the scope of federal jurisdiction under the Clean Water Act, the Corps of Engineers and the EPA have arrogated to themselves the power to control virtually all waters and much of the land in the United States in direct violation of the Act, Supreme Court precedent, and the Constitution.  In a breathtaking expansion of federal authority, these agencies assert jurisdiction over ALL tributaries to actual navigable waters and ALL “adjacent” waters, including ephemeral streams, no matter how small or remote, and puddle-sized pools and wetlands.

The new rule usurps the primary right and responsibility of the States to control local land and water use and undermines the federal-state balance of power the constitution was designed to protect.  The new rule also impinges on the right of landowners to the reasonable use of their property without government interference.  Use of waters and lands subject to the Clean Water Act under the new rule will now be subject to a federal veto backed by threats of astronomical fines and criminal prosecution.  This rule must be overturned to protect the liberties of ordinary citizens across the Country.

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