Issues and Cases

Federal bureaucrats can’t impose sweeping water oversight rules by fiat

Washington Cattlemen's Assoc., et al. v. U.S. Environment Protection Agency, et al.

Contact: M. Reed Hopper

Status:  On behalf of landowners, we filed our initial challenge to the “waters of the United States” or “WOTUS” rule in the Federal District Court of Minnesota in 2015. That case was dismissed for lack of jurisdiction. We filed a parallel challenge to the WOTUS rule in the 8th Circuit Court of Appeals that was consolidated with other challenges to the rule in the 6th Circuit Court of Appeals. On Jan 13, 2017, the Supreme Court granted our request to resolve confusion over which court has jurisdiction to consider challenges to the WOTUS rule—the district courts or the circuit courts of appeal. On Feb 28, 2017, the President of the United States signed an Executive Order directing EPA and the DOJ to reconsider the WOTUS rule and trim back its excesses. At the signing, the President mentioned our Johnson stock pond case as justification for the order. This was not unexpected as the rule is clearly illegal, as two courts had already suggested. The Executive Order may moot all challenges to the rule (including our own) but the Supreme Court is still expected to resolve the question of where such challenges may be brought.
PLF is challenging the Army Corps and EPA’s extreme rule redefining “waters of the United States” subject to federal control under the Clean Water Ac. The case is called Washington Cattlemen’s Association, et al. v. U.S. Environmental Protection Agency, et al,. You can read our press release here.

We represent ranchers, farmers and private parties from 5 different states arguing the new rule violates the Clean Water Act itself, as interpreted by the Supreme Court, and exceeds federal power under the Constitution. The new rule covers virtually all waters in the U.S. and much of the land, extending to every tributary of a “navigable water,” isolated pools and potholes, the 100-year flood plain covering millions of stream miles, and, on a case-by-case basis, any water within 4,000 feet of a tributary. The exemptions are so narrow as to be laughable, if the agencies even honor them.

By redefining waters subject to federal control throughout the Nation, the Corps and EPA have defined their own power to regulate–a power that has no meaningful limits Under the Clean Water Act, the Corps and EPA can limit or prohibit the use of any water or property subject to their jurisdiction and back up their enforcement with ruinous fines ($37,500 a day for alleged violations) and even criminal prosecution. In an orderly society, no agency should be able to define its own power. That’s the role of Congress. In this case, the Corps and EPA have bypassed Congress and become a law unto themselves. By any measure, the new rule redefining “waters of the United States” (WOTUS) is the biggest power grab in U.S. history and should be stricken. That’s what we are asking the court to do.

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