Written by Dan Hatfield
On October 9th of this year the United States Court Of Appeals for the 6th Circuit Court issued an “Order Of Stay” for the entire United States, which consolidated over 40 lawsuits brought against the Environmental Protection Agency and the Army Corps of Engineers that were filed in a number of different courts. This stay basically holds all of the suits at bay until proper jurisdiction can be determined by the Court. The Court held that the petitioners have demonstrated a substantial “possibility” of success on the merits of their claim. In the Order, Judge McKeague states “A stay allows for a more deliberate determination whether this exercise of Executive power, enabled by Congress and explicated by the Supreme Court, is proper under the dictates of federal law. A stay temporarily silences the whirlwind of confusion that springs from uncertainty about the requirements of the new Rule and whether they will survive legal testing”.
So what does this mean for you and me? First things first, for now, we will continue to live under the Clean Water Act rules and regulations that were in place prior to the adoption of the new Rule on August 28th of this year. Second, it means that it could be a long time before we have any definitive action on the new rules and regulations that the EPA and the Corps have recently adopted. So sit back and enjoy this reprieve for as long as it lasts. The matter of proper jurisdiction by the court could be decided in a few weeks or it could take many months; in the meantime all parties will be rounding up their respective armies and preparing to do battle in court.
We can get bogged down in the validity of who has jurisdiction and the legal minutia or we can gaze beyond those arguments and take a look at what is truly at stake here. When our Founding Fathers wrote our constitution they were very explicit about what powers the Unites States was to have and left all other powers to the individual States; those powers not explicitly delineated in the constitution were to be retained by the states. By now you are asking “so what does that have to do with the Clean Water Act”?
The implementation of this new Rule by the EPA and the Corps expands their jurisdiction far beyond what was intended by Congress, the recent rulings of the Supreme Court or the constitutional ideal of States Rights. Whether or not these agencies properly followed the Administrative Procedures Act will be decided in a court of law but whether or not what they are doing is right or wrong is a decision each of us as Americans needs to make. This Rule is one of the largest usurpations of private property rights that has ever been perpetrated on the American people and it is being done under the guise of “clean water”. Who among us doesn’t want and believe in clean water?
When reading the Rule, it talks about jurisdiction of water and the waters of the U.S. however when they define water, what they are really talking about is the water and the land from which the water drains. The definition of “waters” is such that you are talking about regulating land in many cases and not actual water. The definition of this new rule will include ephemeral streams, ditches, low spots, dry gullies, etc.; as well as the land that is adjacent to or abuts those areas for distances ranging from 100 feet to as much as 4,000 feet. So if you have a dry ditch or gully on your property then it could include the width of the gully plus an area up to one half mile on each side of that making it a total width of over one milewhich the EPA could claim jurisdiction. When you plot this out on a map in some states it will encompass as much as 96% of the total land mass of the state that the federal government will have jurisdictional control over. This is not what our Constitution or our Congress intended. When creating this rule, in hearings, the EPA said that the Rapanos ruling left 60% of the nation’s streams and millions of acres of land that “lacked clear Federal regulation”. Remember that the Clean Water Act already covered a large portion of the streams and land in the U.S. and the EPA was looking at the balance. The Rapanos case was the seminal case addressing the permissible federal jurisdiction over the waters of the U.S. In that case Justice Kennedy’s opinion stated that the federal government only had jurisdiction over those waters that had a “significant nexus” to a water that has been traditionally subject to federal regulation. (Rapanos v. United States, 547 U.S. 715, 62 ERC 1481, U.S. 2006) What was traditional was the “navigable waters of the U.S.” This rule has deleted the term “navigable” turning all waters into the waters of the U.S. In addition the idea of a significant nexus has been expanded to include just about any water that will run off a property or remain standing on a property and in some cases even water that percolates through a property. This water along with hundreds of millions of acres of land is what is at stake in this case, do not let anyone tell you otherwise.
What President Obama could not get passed through Congress, he has unleashed on the federal agencies or signed into law by fiat. In this case he has encouraged the EPA to do an end-around the Congress by rewriting the agencies rules and implementing ideas and regulations that have not been thoroughly vetted by our elected representatives. The EPA has been extremely aggressive in campaigning for the new rule instead of doing their job of administration and management of the rules set forth by Congress.
You will read many articles arguing the nuances of the law and who has or should have jurisdiction of the numerous lawsuits before the courts. Let’s not forget what is at the basis of what is being discussed and that is the federal regulation of hundreds of millions of acres of land in the Unites States. The House of Representatives has already passed a bill to send this Rule back to be more fully vetted with inputs from the States and property owners across America… Now the Senate needs to act.