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The EPA Should Get on with Clean Water Act Reform

August 17, 2018 - 1:15pm

For many years, the Pacific Legal Foundation (PLF) has served as advocate for ordinary Americans facing byzantine regulation of their land by the EPA’s water bureaucrats.

In 2006 our client John Rapanos won his case at the Supreme Court, establishing that EPA’s regulations defining “navigable waters” were illegal. But rather than follow Justice Scalia’s plurality opinion narrowly interpreting “navigable waters,” the government and the lower courts uniformly followed Justice Kennedy’s lone opinion.

For 9 years after Rapanos v. U.S., EPA and the Army Corps continued to enforce their illegal regulations against a series of PLF clients, including Chantell and Mike SackettJohn Duartethe Hawkes Company, and Joe Robertson.

Then, in 2015 the Obama Administration EPA adopted a new regulation defining “navigable waters,” that went even further afield from actually navigable waters than the previous one, sweeping millions more acres of mostly dry land into EPA’s portfolio of federally protected “waterways.”

When Donald Trump was unexpectedly elected President in 2016, one of his first acts was an executive order directing EPA to reconsider its 2015 water definition, and to adopt a new regulation that followed Justice Scalia’s Rapanos opinion.

But since then, EPA and the Army Corps have prioritized their efforts on returning to the old illegal regulations instead of replacing the 2015 illegal regulations with a new and legally sound definition of navigable waters.

First, EPA adopted a regulation (the Applicability Date Rule) purporting to delay the implementation of the illegal 2015 rule for two years, during which time EPA would illegally enforce the old regulations. Perhaps unsurprisingly, a federal court Thursday enjoined the Applicability Date regulation.

Then, EPA proposed a regulation that would repeal the 2015 regulation entirely, but return to the prior illegal regulations (aptly referred to as the Repeal and Recodify Rule). Only after all of these gymnastics does EPA plan to propose a new definition based on the Scalia Rapanos opinion.

It is well past time to adopt a new and legally valid definition of navigable waters, and stop trying to return to the illegal regulatory regime of the past. This week PLF filed comments with the EPA and Army Corps, objecting to its intent to return to enforcement of the regulations that the Supreme Court ruled were illegal over a decade ago.

Enough with the past. EPA must prioritize  a legally valid definition of navigable waters, one that limits the agency’s enforcement bureaucrats to the true waterways that Congress gave it authority to regulate and protect under the Clean Water Act. No more EPA enforcements in residential subdivisions, farm fields, and 18 -inch-wide rivulets.

Anthony L. Francois, a senior attorney in Pacific Legal Foundation's Sacramento office, has litigated cases around the country defending Americans’ property rights from land use and environmental restrictions. He practices before several federal trial and appellate courts and the Supreme Court of the United States.

Comments

too little, too late... They f'd this up from the very beginning by slashing the budgets of the state EPOA and SWFMD.

Only 30% of Americans get drinking water from surface watersheds. Obama played to his base in Calif. and NY by usurping the wishes of the SCOTUS, which made development of the other 70%’s ground-water more imperiled, such as the case here in Fla. as evidenced by algae. Adding hoops and hurdles to wetlands in areas that use groundwater instead, only worsens the drinking water quality for 2/3 of Americans. But at least Obama won his 2nd term, that’s what mattered.

I guess they want everyone to have green slime, etc rivers, lakes, streams.

A LOSS for Francois & Pacific Legal = BIG win for Florida.

Ditto Ted Kruze. Francois is on a "property rights" for me, "pollution for the rest of us" roll. Sound regulations, based on good science is necessary to keep this country functioning for all, not just the few. Clean water is a national concern. The concept of "navigable waters" has been litigated for decades - and now deals with the real polluters. Francois wants to throw it all out the window because of Trump. Think, folks.

Scott and Putnam have eviscerated the Clean Water Act in all its contexts in Florida over their past 8 years in office. Consequently, Florida has SEVERE environmental and clean water problems that may turn out to be non-correctable. Anybody that votes for Scott as senator and Putnam for governor is absolutely nuts!

I agree! Very sad statement that Floridians voted not once but twice for the dishonest environmental annihilator.

Your solution is what? Who?

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