The Corps of Engineers and EPA want to federalize the
“Waters of the United States”
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The Obama Administration has imposed a new Clean Water Act (CWA) dictate that threatens to unleash a flood of federal regulations over people's land and their lives, from one end of the continent to the other. This breathtaking power grab takes the form of an open-ended new definition of the "waters of the United States" that are subject to the Act. The rule is so broad and vague that federal regulators would be licensed to micro-manage property owners who are far away from genuinely navigable waters such as rivers, lakes or the ocean. PLF is preparing to fight back. We're already known for our precedent-setting victories against CWA overreach -- including the 2006 U.S. Supreme Court ruling, Rapanos v. United States, which set clear boundaries on the regulators' reach.
Because the Obama Administration isn't obeying Rapanos, or the clear limits set by the Constitution and the CWA itself, our response now is simple and blunt: "We will be seeing you in court!" PLF Principal Attorney M. Reed Hopper, who successfully argued the Rapanos case at the Supreme Court, notes that it specifically said isolated waters and "tributaries" to navigable waterways are beyond the control of the CWA. "But these are the very waters that the new rule purports to regulate!" Hopper notes. "The new edict expands federal regulatory power to an unprecedented extent -- violating clear legal and constitutional principles, and undermining the rights and responsibilities of the states to control local land and water use," said Hopper.
"It is filled with ill-defined terms that add even more arbitrariness to the regulatory scheme," he pointed out. "All this vagueness allows federal officials to make subjective decisions and to assert the broadest possible interpretation of their jurisdiction. The result will be an environment of uncertainty that undermines property rights, economic growth, and liberty."
To learn more about the new rule and PLF's detailed analysis of it, visit: www.pacificlegal.org. Listen to our podcast on the issue. PLF attorneys are hard at work developing our legal challenge to this ominous assault on freedom. We will alert you when we file our lawsuit -- and keep you posted along the way, as we vigorously prosecute the litigation, up to the Supreme Court if necessary.
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The Environmental Protection Agency and the U.S. Army Corps of Engineers have proposed a controversial Clean Water Act rule that would seek to expand their regulatory power over almost any type of water in the nation.
PLF is suing over the feds’ sweeping new definition of “waters of the United States,” which is so broad that it could impose The Clean Water Act on virtually any water – and land - anywhere.
Op-Eds & Press
On June 29, the Supreme Court invalidated the Environmental Protection Agency’s regulation on power plant emissions, stating that the EPA’s interpretation of its authority was not even “rational,” let alone reasonable. But the decision came too late for power plants in certain states. Many spent billions of dollars complying with the illegal rule; others closed forever. But don’t expect the EPA to admit its error. The EPA is frequently wrong, but never in doubt.
On behalf of a number of landowners and major organizations representing landowners, including the state cattlemen’s associations of California, Washington, and New Mexico, Pacific Legal Foundation sued the Obama Administration over its vast new expansion of Clean Water Act (CWA) jurisdiction.
Full Press Release
Nine environmental conservation groups have joined the surge of states and businesses suing the federal government over a new water regulation.
The EPA and Corps “Waters of the United States” rule illustrates the need for fundamental reform of the authority and procedures for issuing such agency “laws.” But until then, Congress and the courts must do more to stop these individual threats to our liberty.
California’s “big thinkers” on water shouldn’t stop with advocating for more infrastructure; they also need to agitate, loudly and persistently, against the federal “green” policies that help brown our state by draining the dams, canals and pipelines we already have.
By Reed Hopper
"The arrogation of authority occasioned by this proposed rule extends federal authority over local land and water use to an extreme never seen in the history of this Nation. It is contrary to existing federal law and judicial precedent and should be amended or abandoned."
Gallagher & Henry v. Army Corps of Engineers
When land is labeled “wetlands” by regulators, the owner deserves court review
Summary: G&H is a family owned developer on the outskirts of Chicago. In the spring of 1996, G&H began work toward residential development of a large portion of a 100-acre agricultural site it had purchased. Multiple efforts to secure a jurisdictional determination began in January, 2006, and the final determination — that the property was jurisdictional wetlands — was made by the Corps on appeal only in July, 2013. Representing the landowners in litigation, PLF argues that jurisdictional determinations are subject to judicial review; that the agency improperly went outside the record in making its determination; and that the agency failed to adhere to the rule that exempts prior converted cropland from federal wetlands regulation.
Status: Complaint filed in the Northern District of Illinois on July 21, 2015.
Case Page Press Release Blog
Washington Cattlemen's Assoc. v. U.S. Environment Protection Agency
Federal bureaucrats can’t impose sweeping water oversight rules by fiat
Summary: The EPA and Corps of Engineers have issued a draft document redefining jurisdictional waters under the Clean Water Act. This redefinition extends federal regulatory authority far beyond any prior interpretation of the Act and will be promulgated as nonreviewable “internal guidance” in violation of APA rule-making procedures. PLF contends the “guidance” constitutes substantive rules that must be adopted through formal rule-making. Factual and procedural background In May, 2011, the EPA and Corps issued proposed Guidance Regarding Identification of Waters Protected by the Clean Water Act and seeking public comment. PLF submitted comments objecting to the “guidance” as inconsistent with the statute, historical practice, Supreme Court precedent, and constitutional principles. The “guidance” literally extends federal jurisdiction over any wet area the agencies choose to regulate and essentially incorporate broad legislative bills, that Congress was unwilling to pass, that would have expanded the Clean Water Act to expressly cover “all waters of the United States.” The agency proposes adopting this “guidance” as an interpretive rule that is not subject to judicial review so as to avoid legal challenge. But, the APA requires an agency to promulgate substantive new rules, like those presented in the draft “guidance,” through the formal rule-making process that authorizes judicial review of final agency action. It is anticipated that the “guidance” will be adopted in the near future.
Status: Complaint filed in the U.S. District Court of Minnesota on July 15, 2015.
Case Page Press Release Blog Podcast
Duarte Nursery v. Army Corps of Engineers
A farmer’s due process rights are plowed under by the feds
Summary: PLF attorneys represent Duarte Nursery and John Duarte in a lawsuit over the denial of due process rights by the U.S. Army Corps of Engineers and the Central Valley Regional Water Quality Control Board. On February 25, 2013, the Corps sent a cease and desist letter to Duarte, ordering suspension of farming operations on a parcel of land in Tehama County, California, based on alleged violations of the Clean Water Act during farming operations.
The Corps did not notify Duarte of the allegations in the letter prior to issuing the letter, or provide Duarte any opportunity to comment on the allegations or the requirements of the letter prior to issuing it. On April 18, 2013, the Corps sent a follow-up letter to Duarte’s counsel, providing an erroneous factual basis for the cease and desist letter, and then asking Duarte for several items of information, which the Corps should have inquired into and given Duarte an opportunity to comment on prior to issuing the letter.
Status: On October 23, 2015, Duarte Nursery filed a motion for summary judgment against the Army Corps of Engineers, presenting undisputed facts that show that the farming company is entitled to judgment as a matter of law because the government deprived it of property without a hearing. The motion is scheduling for hearing in federal court in Sacramento on November 20, 2015.
Case Page Press Release Blog Video Podcast
Hawkes Co., et al. v. U.S. Army Corps of Engineers
When regulators label property as “wetlands,” owners may seek judicial review
Summary: Through a “Jurisdictional Determination,” the Army Corps of Engineers designated property owned by The Hawkes Co., Inc., Pierce Investment Company, and LPF Properties, in Minnesota, as “wetlands” over which the Corps has regulatory authority. On appeal, the threshold issue is whether property owners have the legal right to bring a court challenge to such a regulatory finding.
PLF represents the property owners on appeal, and argues that Jurisdictional Determinations — “wetlands” designations under the Clean Water Act — are final agency actions subject to judicial review. In attempting to hold Clean Water Act regulators accountable to the courts for their decisions about whether property is wetlands or not, and where they have regulatory power, this case follows up on our victory in Sackett v. EPA. In that landmark 2012 decision, the U.S. Supreme Court held that property owners may appeal directly to the judiciary from a federal wetlands “compliance order.”
Status: The U.S. Supreme Court granted the petition for writ of certiorari on December 11, 2015. Briefing on the merits completed. Oral argument was held on March 30, 2016. In a groundbreaking victory for PLF on May 31, 2016, the U.S. Supreme Court unanimously ruled that landowners have a right to seek judicial review when their property is designated as wetlands subject to federal jurisdiction under the Clean Water Act.
Case Page Press Release Blog
Kent Recycling Services, LLC v. U.S. Army Corps of Engineers
Corps of Engineers flouts law in attempt to expand its control of private property
Summary: Our client in this case, Kent Recycling, is purchasing “prior converted croplands” in Louisiana that the company intends to convert to a waste disposal site. Because of the change in use, the Corps issued a Jurisdictional Determination stating that the land is not subject to the exemption under the Corps’ “policy pronouncement.” The property seller and Kent Recycling originally challenged the Jurisdictional Determination in an administrative proceeding and then in federal district court, but the courts erroneously ruled that they had to go through a pointless, lengthy, and expensive permitting process with the agency (that is based on the flawed Jurisdictional Determination itself) before the courts could intervene.
Kent Recycling is challenging this denial of federal court access in the U.S. Supreme Court, arguing that the Jurisdictional Determination is a final agency action subject to judicial review pursuant to Sackett v. EPA, 132 S. Ct. 1367 (2012). In Sackett, the Supreme Court agreed with Pacific Legal Foundation and held that landowners have a right to direct, meaningful judicial review if the government (in that case, the EPA) seizes control of their property by declaring it to be “wetlands.” Despite the reasonably clear applicability of Sackett to the instant case, the lower courts have refused to apply it, and held instead that Kent Recycling must: 1) abandon the planned use of the land; 2) submit to a costly, 2-year permitting process; or 3) go forward and risk fines of up to $37,500 a day and imprisonment for proceeding without a permit. We disagree with those courts that this decision of the Corps is presently unreviewable, and believe the Supreme Court will, as well.
Status: The U.S. Supreme Court denied the petition for writ of certiorari on March 23, 2015. Petitioner filed its petition for rehearing on April 16, 2015. The U.S. Supreme Court granted PLF's petition for rehearing, vacated its order denying review of Kent Recycling, granted review of the case, then at the same time vacated the Fifth Circuit’s adverse decision, and remanded the case to the Fifth Circuit for further review in light of the Court’s decision in Army Corps of Engineers v. Hawkes.
Case Page Press Release Blog