PLF uses Congressional Review Act to challenge illegally enforced wetlands guidance

May 31, 2017 | By TONY FRANCOIS

Last Friday, we filed a motion in federal court in the Duarte Nursery case, asking the judge to exclude evidence based on the 2008 Post-Rapanos Guidance because it was never submitted to Congress for review under the Congressional Review Act and is therefore, under that Act, not in effect and unenforceable.

Followers of PLF’s Red Tape Rollback project will be familiar with the basic concept. Under the Congressional Review Act, federal agencies are required to submit each of their rules, along with a report, to each House of Congress and the Comptroller General. Rules cannot take effect before they have been so submitted. Once a rule is submitted, Congress has a period of time in which it can use expedited procedures to disapprove the rule. If the president signs a joint resolution of disapproval, then the rule can not take effect and the agency is permanently barred from adopting a substantially similar one absent statutory approval.

A “navigable water” that the United States is suing Duarte Nursery for plowing, based on a guidance document that is not legally in effect under the Congressional Review Act.

In the Duarte Nursery case, the government is claiming that a series of small and isolated vernal pools and swales on the company’s property are federally protected wetlands. But they are not navigable in any sense, nor do they meet the only test that the Supreme Court has approved for federal regulation of non-navigable wetlands (i.e. they are not directly abutting navigable waters in a way that you cannot tell where one ends and the other begins).


So how can the United States claim that small, isolated, and seasonal pools are really federal navigable waters? Enter the Army Corps’ 2008 Rapanos Guidance. In 2006, the Supreme Court, in a case litigated by PLF, ruled against the EPA’s assertion of jurisdiction over wetlands on John Rapanos’ property, because they were too tenuously connected to any actually navigable waters. The EPA and Army Corps of Engineers then issued a guidance document in 2008 that purports to interpret and implement the Supreme Court’s decision in Rapanos, although it stretches that decision beyond the breaking point to continue the agencies expansive view of how much of your land they can call their water.

This is the guidance document under which the United States claims that damp spots on Duarte Nursery’s land are the federal navigable waters. But here’s the rub: because the Rapanos Guidance was never submitted to Congress under the Review Act, it is not legally in effect.

As my PLF colleague Jonathan Wood explains in this Daily Caller op ed, the Rapanos Guidance is not only an invalid effort to expand federal authority beyond limits set by the Supreme Court. It is also a rule that the Congressional Review Act required the agencies to submit to Congress before it can take effect. And since it was not submitted, it is not in effect and cannot be relied on for enforcement or court proceedings.

Learn more about the Congressional Review Act, and how it can protect ordinary Americans from unaccountable bureaucracy.