October 29, 2013

Water war ramps up!

By M. Reed Hopper Senior Attorney

We have previously posted about the government’s attempt to broaden the reach of the Clean Water Act through blatant misinterpretation of the act and federal case law.  See here, here and here.  A case in point is the Corps and EPA’s so-called Draft Guidance On Identifying Waters Protected By The Clean Water Act.  This sham document distorted federal law beyond recognition and asserted the feds could regulate virtually any water in the U.S.  The issuance of this document caught the attention of members of Congress leading to a series of bills to defund any enforcement of the “guidance.”  Private property advocates, including PLF, have been waiting in the wings to challenge this “guidance” once finalized because it would have literally rewritten federal law without going through the formal rulemaking process.  Federal bureaucrats appear to have recognized their gambit to extend federal authority in this way was too risky to pursue.  So, they have changed tactics.

Here is how things now stand:

1.  The Corps and EPA have withdrawn their Draft Guidance from OMB review.
2.  On Sep 11, the Corps and EPA submitted a new proposed jurisdictional rule to OMB in place of the Draft Guidance.
3.  To support the new rule, the Corps and EPA have issued a preliminary report on connectivity which is open for comment until Nov 6.

It is likely that the new rule will simply echo the Draft Guidance, broadening the scope of the Clean Water Act to an unprecedented degree in violation of statutory and even constitutional law.  If so, it may well be the largest power grab in the history of the country.

The connectivity report was no doubt commissioned to provide support for the agencies’ overly broad interpretation of federal authority under the Clean Water Act.  There are a number of glaring problems with the report which we address in comments here.  First, it concludes that all streams (no matter how small or intermittent) are interconnected and have an effect on downstream navigable waters.  But the report does not show if those effects are significant or even how to determine significant effects.  This is important because Justice Kennedy held in Rapanos that jurisdictional waters must have a significant effect on traditional navigable waters.  The Rapanos court rejected the theory that a water is subject to federal regulation just because it has a hydrological or other connection to downstream navigable waters.  Secondly, the connectivity report uses the terms “stream,” “wetlands,” and “adjacent” differently than the Supreme Court and the agencies currently use those terms.  The report uses broader terms, apparently to expand the reach of federal authority.  At times, it even includes groundwater, which the courts have routinely excluded from federal jurisdiction.  Finally, the new jurisdictional rule is being proposed before the connectivity report is even finalized.  This is bizarre and suggests the EPA and Corps will push forward with their expansive and unlawful interpretation of their regulatory authority regardless of what the connectivity report shows.

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