October 27, 2016

The politicization of the clean water rule

By M. Reed Hopper Senior Attorney

After a two year investigation, a House of Representatives oversight committee released a damning report today that documents blatant government abuse in the drafting and promulgation of the Corps and EPA’s rule defining “waters of the United States” that are subject to complete federal control under the Clean Water Act. Along with PLF, most of the States and scores of industry groups have challenged the rule as a violation of statutory and constitutional law.  This rule has become the “poster child” for government overreaching and double dealing.  Among other things, Corps officials opposed the rule declaring in internal memos that the rule is legally and scientifically insupportable.  And, a GAO audit reported that the government engaged in outright propaganda to drum up public support for the rule.  The new report fills in the blanks and underscores the need for more congressional oversight of federal rule making.  To whet your appetite, here is an excerpt from the executive summary:

The “Clean Water Rule,” commonly referred to as the “waters of the United States” (WOTUS) rule, was signed by Environmental Protection Agency Administrator Gina McCarthy and Assistant Secretary of the Army for Civil Works Jo-Ellen Darcy on May 27, 2015 in a picturesque signing ceremony hosted by the National Wildlife Federation on the banks of Washington, D.C.’s Anacostia River. The process that led to the rule’s signing, however, was rife with legal shortcuts, predetermined conclusions, and politically-driven timelines.
The report can be read here.


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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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