WASHINGTON, DC; May 27, 2015: Pacific Legal Foundation (PLF) today criticized the Obama Administration for a new regulatory rule that would vastly expand federal Clean Water Act (CWA) jurisdiction in a way that goes beyond the limits of the law and the Constitution.
Issued today by the Environmental Protection Agency and the Army Corps of Engineers, the new rule, with 297 pages of explanatory material, defines the “waters of the United States” so expansively that federal regulators would have power over almost all of the nation’s waters, and much of the nation’s land, including all “tributaries” (no matter how small or remote), “neighboring” water bodies, and even isolated waters that the Supreme Court has already determined are beyond CWA coverage.
PLF is a leading litigator in support of property rights and balanced environmental regulations. PLF’s precedent-setting victories against CWA overreach, abuses, and misinterpretations include the 2006 U.S. Supreme Court ruling, Rapanos v. United States, which prompted regulators to develop the new rule.
Statement by PLF’s Reed Hopper
“Today, the Corps and EPA released a new rule that would vastly — and illegally — expand federal regulatory power under the Clean Water Act through a practically open-ended new definition of the term, ‘waters of the United States,’” said PLF Principal Attorney M. Reed Hopper. “Although government officials claim the new rule does not enlarge their power over average Americans, and is consistent with Supreme Court decisions interpreting the Clean Water Act, this could not be further from the truth. In the 2006 case of Rapanos v. United States, for example, the Supreme Court held that the federal government could not regulate all ‘tributaries’ to navigable waterways, and reaffirmed that isolated water bodies are off-limits to federal regulators. But these are the very waters that the new rule purports to regulate.
“EPA Administrator Gina McCarthy claims the new rule will clarify which waters are regulated under the Clean Water Act without expanding the scope of the Act,” added Hopper, who successfully argued the Rapanos case before the Supreme Court. “But in fact, the rule introduces even more vagueness and uncertainty into the regulatory scheme. It leaves all the previously ill-defined terms in place, like ‘adjacent,’ ‘wetland,’ and ‘discharge,’ while adding a handful of equally malleable terms such as ‘floodplain,’ ‘tributary,’ and ‘significant nexus.’ The new rule also provides that federal officials can decide on a case-by-case basis whether any ‘other waters’ should be regulated. This necessarily leads to unpredictable and subjective enforcement of the law.
“All this vagueness gives federal officials the freedom to assert the broadest possible interpretation of their Clean Water Act jurisdiction, thereby fostering an environment of uncertainty that undermines economic growth,” Hopper continued.
“As for the Administrator’s claim that the new rule does not broaden the scope of the Clean Water Act, that’s clearly wrong,” he added. “To the contrary, with its vagueness and nearly limitless definition of the waters that can be regulated, the rule continues the EPA’s longtime agenda of an overly broad reading of its power. The EPA has a consistent history of exceeding its authority, especially under the Clean Water Act. In 2001, in the SWANCC case, and again in 2006, in the Rapanos case, the Supreme Court chastised EPA for precisely such overreaching.
“Contrary to the regulators’ claims, the new rule does not simply reassert federal authority over historically regulated waters,” Hopper said. “Instead, it expands the scope of the Clean Water Act to an unprecedented extent — violating both the terms of the Act and the Constitution’s limits on federal authority, and undermining the rights and responsibilities of the states to control local land and water use.
“Under this new rule, the only waters that are clearly not subject to federal regulatory power are the few that are exempted or expressly excluded from the Clean Water Act, including artificial reflective pools, ornamental waters, ground water, and gullies, non-wetland swales, and puddles,” Hopper noted. “In the wake of this new rule, prudent lawyers would have to advise their clients that unless the waters or ditches on their land are exempt or expressly excluded under the letter of the Clean Water Act, they may be subject to federal regulation. This is hardly the ‘increased clarity’ that the EPA promised.”