June 27, 2017

WOTUS rule withdrawal only a good start

By James S. Burling Vice President for Litigation

Pacific Legal Foundation applauds the Trump administration’s announcement of its withdrawal of the infamous WOTUS rule. But it’s only a start. More must be done.

The WOTUS rule called for a dramatic, unprecedented and unconstitutional expansion of the federal government’s authority to regulate all manner of land use, no matter how remote and tenuous the connection is to an actual navigable water. The Constitution permits the federal government to regulate only places and activities that affect interstate commerce. This is not a carte blanche for the feds to regulate anything they please no how remote the connection to commerce.

The WOTUS rule purported to give the federal government the right to regulate all manner of land use activities on land that could be thousands of feet from a nonnavigable stream that might be connected, eventually, to a navigable waterway. The WOTUS rule went far beyond the authority to regulate wetlands adjacent to navigable waterways, and threatened farmers, ranchers, home builders, and home owners across the nation with expensive and onerous permitting requirements, and criminal penalties and millions of dollars in fines for activities as innocent as plowing a field.

But the WOTUS rule withdrawal is not enough. Even before the rule, the EPA and Corps of Engineers had been terrorizing land owners with the so-called Rapanos guidance, named after a Supreme Court case where the federal government lost its claim that it could regulate John Rapanos’s fields. Justice Scalia, writing for four members of the Court, said that the federal government could regulate a purported wetland only if there were a surface connection with a navigable water.

But the EPA and Corps have ignored that statement, instead relying on the single concurring opinion of Justice Kennedy in Rapanos. Kennedy, writing only for himself, said all that is needed for federal jurisdictional control is a ‘significant nexus’ to a navigable waterway. But the term ‘significant nexus’ is undefined and the federal government has interpreted it to be absurdly broad. The feds argue that even if a single molecule of water dropped on dry land ever reaches a navigable water, even years later, that is enough to force landowners to obtain federal permits before using their land. This so-called “Rapanos guidance” was never adopted pursuant to the Administrative Procedures Act, violates the Congressional Review Act, and flies in the face of the Supreme Court’s holding in Rapanos.

Today’s statement from the EPA says, “the agencies will conduct a separate notice and comment rulemaking that will consider developing a new definition of ‘waters of the United States” taking into consideration the principles that Justice Scalia outlined in the Rapanos plurality opinion.” The sooner that happens the better. Otherwise, too many landowners will be in the netherworld of illegal regulatory overreach.

In short, while we applaud the revocation of the WOTUS rule, a crucial next step will be for the government to likewise drop the Rapanos guidance and instead adopt the Scalia opinion from that case.

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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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