May 1, 2015

Waters of the U.S.: Separating fact from fiction

By M. Reed Hopper Senior Attorney

Yesterday, PLF and the Heritage Foundation co-sponsored a forum on the Corps and EPA’s controversial proposed rule redefining the scope of the Clean Water Act.  As we have previously reported, this rule is a massive power grab in direct violation of the Act itself,  Supreme Court decisions, and established constitutional limitations.  I was part of a panel discussing the rule along withe Daren Bakst from Heritage and Don Parrish from the American Farm Bureau Federation.  I argued that when it comes to the Clean Water Act the federal government is the biggest lawbreaker in the Country because the Supreme Court has already ruled the scope of the rule is invalid.  In SWANCC, the court held the Clean Water Act does not cover isolated water bodies, like remote ponds and mudflats, because of statutory and constitutional constraints, and in Rapanos the court held the Act doe snot cover all tributaries to downstream navigable waters.  However, in typical fashion, these are the very waters the Corps and EPA propose to regulate.

You can watch or listen to the discussion here.

The high point of the event was when Don Parrish set the record straight on the Administration’s often hyped claim that support for the rule was overwhelming.  Although tens of thousands submitted a “vote” for the rule, through various one line twitter campaigns, the agency received 3,000 substantive comments.  These are the comments that really count because they are based on an actual reading and analysis of the rule, instead of a headline promoting clean water.  Those comments were overwhelming opposed to the rule.  According to Mr. Parrish, 36 states opposed the rule while only 7 supported it.  And only 7 counties, 20 cities and 50 businesses, supported the rule.  With this kind of “support,” the Corps and EPA should have gone back to the drawing board.  Instead, these agencies are proceeding with this ill-conceived rule post-haste.  The rule is now under review by OMB and will likely be promulgated in final form in the next month or two.  Shortly thereafter these agencies will be in court defending the rule against a wide range of challengers, including PLF.

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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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