December 8, 2014

The Wall Street Journal publishes PLF op-ed on illegal draft rule

By Todd F. Gaziano Chief of Legal Policy and Strategic Research, and Director, Center for the Separation of Powers

The U.S. EPA and Army Corps of Engineers are attempting an unprecedented — and unconstitutional — power grab to extend the Clean Water Act (CWA) to cover “virtually any wet … spot in the country, including ditches, drains, seasonal puddle-like depressions, intermittent streams, ponds, impoundments, prairie potholes, and large ‘buffer areas’ of land adjacent to every waterway.”

So argues our op-ed in today’s Wall Street Journal. It is based on the comments Reed Hopper submitted to the agencies opposing the illegal draft rule. Reed and I explain that the proposed definition of the “waters of the United States” is so vague and potentially all-encompassing that it could lead to an almost unlimited expansion of federal control over property nationwide — going far beyond the limits laid down by the Supreme Court of the United States in two recent decisions.

One of the two rulings was the 2006 case of Rapanos v. United States, which Hopper successfully argued before the High Court.  The court agreed with PLF that the CWA does not cover remote water bodies with no significant effects on traditional navigable waters, and the federal government is expressly forbidden from regulating all tributaries. However, as our op-ed in the Journal points out, the agencies’ proposed rule would extend to “the very waters the Supreme Court said they could not regulate.”

We maintain that by “any fair reading, the proposed rule would federalize virtually all water in the nation, and much of the land, in direct contravention of Supreme Court precedent and express congressional policy in the Clean Water Act.” The proposed rule “is patently unreasonable and should be amended or withdrawn.”

We end by explaining that “PLF and others will again take these two agencies to court” again if the rule is not withdrawn or significantly changed. Unfortunately, that tames time. We’d rather the two federal agencies paid attention to our comments and the concerns expressed by Members of Congress and many others and follow the law.

 

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