August 16, 2018

The EPA should get on with Clean Water Act reform

By Anthony L. Francois Senior Attorney

For many years, PLF has served as advocate for ordinary Americans facing byzantine regulation of their land by the EPA’s water bureaucrats.

In 2006 our client John Rapanos won his case at the Supreme Court, establishing that EPA’s regulations defining “navigable waters” were illegal. But rather than follow Justice Scalia’s plurality opinion narrowly interpreting “navigable waters,” the government and the lower courts uniformly followed Justice Kennedy’s lone opinion, which interpreted the term expansively but very vaguely.

For 9 years after Rapanos v. U.S., EPA and the Army Corps continued to enforce their illegal regulations against a series of PLF clients, including Chantell and Mike Sackett, John Duarte, the Hawkes Company, and Joe Robertson.

Then, in 2015 the Obama Administration EPA adopted a new regulation defining “navigable waters,” that went even farther afield from actually navigable waters than the previous one, sweeping millions more acres of mostly dry land into EPA’s portfolio of federally protected “waterways.”

When Donald Trump was unexpectedly elected President in 2016, one of his first acts was an executive order directing EPA to reconsider its 2015 water definition, and to adopt a new regulation that followed Justice Scalia’s Rapanos opinion.

But since then, EPA and the Army Corps have prioritized their efforts on returning to the old illegal regulations instead of replacing the 2015 illegal regulations with a new and legally sound definition of navigable waters.

First, EPA adopted a regulation (the Applicability Date Rule) purporting to delay the implementation of the illegal 2015 rule for two years, during which time EPA would illegally enforce the old regulations. Perhaps unsurprisingly, a federal court today enjoined the Applicability Date regulation.

Then, EPA proposed a regulation that would repeal the 2015 regulation entirely, but return to the prior illegal regulations (aptly referred to as the Repeal and Recodify Rule). Only after all of these gymnastics does EPA plan to propose a new definition based on the Scalia Rapanos opinion.

It is well past time to adopt a new and legally valid definition of navigable waters, and stop trying to return to the illegal regulatory regime of the past. This week PLF filed comments with the EPA and Army Corps, objecting to its intent to return to enforcement of the regulations that the Supreme Court ruled were illegal over a decade ago.

Enough with the past. EPA must prioritize  a legally valid definition of navigable waters, one that limits the agency’s enforcement bureaucrats to the true waterways that Congress gave it authority to regulate and protect under the Clean Water Act. No more EPA enforcements in residential subdivisions, farm fields, and 18 inch wide rivulets.


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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.

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