June 16, 2015

More clarification on "waters of the United States"

By M. Reed Hopper Senior Attorney

We have noted earlier that the EPA and the Corps of Engineers have issued a “pre-publication” version of their final rule redefining those waters (and land features) subject to heavy-handed regulation under the Clean Water Act, known as “waters of the United States” or, more colloquially, as WOTUS. We are still waiting for the rule to appear in the Federal Register which is the federal government’s official publication for new and amended rules and regulations.  As previously noted, once the rule is published, it will become effective 60 days later.

In the meantime, we are seeing a number of groups producing some excellent analysis of the new rule and its impact on landowners.  Our friends at the American Farm Bureau Federation deserve special mention because of the detailed analysis they provide on the issue here.  There are four documents in particular that those with an interest in this subject should review.  The first is AFBF’s honest and insightful fact check of the agencies’ claims about the new rule.  The second is a side-by-side comparison of the old, proposed and final rules.  Take special note of the substantial differences between the proposed rule and the final rule.  The third document is a condensed version of AFBF’s overall analysis of the rule.  And the fourth is a more detailed version of the same.  These analyses show the staggering breadth of the new rule and provide an excellent reference tool for landowners and practitioners alike.

learn more about

Waters of the United States

In 2015 PLF challenged the Environmental Protection Agency’s proposed rule to stretch federal control to nearly every pond, ditch, and puddle in the nation as nothing more than an outrageous—and illegal—power grab under cover of the Clean Water Act. And under the Act, people who are harmed by such rules have six years to sue in federal district court. That is, until the EPA rewrote the rule, trying to prevent legal action by giving property owners just 120 days to sue, and then only in federal appellate courts. On January 22, 2018, the U.S. Supreme Court rejected the EPA’s power play and unanimously ruled for PLF and property rights. The High Court agreed with PLF that the EPA cannot shelter its “waters of the United States” rule from judicial review by arbitrarily limiting where victims can sue.

Read more

What to read next