PLF sues the Corps and EPA over expansive water rule

July 15, 2015

SACRAMENTO, CA;  July 15, 2015:  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 (PLF) sued the Obama Administration today over its vast new expansion of Clean Water Act (CWA) jurisdiction — an expansion that could bring virtually all the nation’s water and much of the land under direct federal regulatory control.

Specifically, the lawsuit seeks invalidation of the new regulatory rule defining the “waters of the United States” that are subject to CWA jurisdiction.  Issued by the Environmental Protection Agency and the Army Corps of Engineers, the rule is illegal — and unconstitutional — because it sets no limit on the CWA’s reach, while explicitly expanding it to waters that the Supreme Court has already ruled to be off-limits to federal control.

Judicial precedent and statutory language limit the CWA to “navigable” waters such as rivers, lakes, oceans, and adjacent waters directly connected to them.  In violation of this rule, the administration’s new definition of “waters of the United States” is open-ended; for instance, it includes all “tributaries,” no matter how small or remote; “neighboring” water bodies without any connection to a navigable water; and even isolated waters that the Supreme Court has held to be beyond CWA coverage.

In this lawsuit, PLF represents landowners and organizations of landowners whose rights are endangered by the administration’s limitless expansion of Clean Water Act regulatory power, including Washington Cattlemen’s Association; California Cattlemen’s Association; New Mexico Cattle Growers’ Association; New Mexico Federal Lands Council; New Mexico Wool Growers, Inc.; family-owned Duarte Nursery, Inc., of Hughson (Stanislaus County) California; and other private landowners.  Donor-supported PLF represents all these parties without charge, as with all PLF clients.

The administration is violating the Rapanos precedent that PLF won at the Supreme Court

PLF’s precedent-setting victories against CWA overreach include the 2006 U.S. Supreme Court ruling, Rapanos v. United States, which prompted regulators to develop the new rule that is challenged in this litigation.  In Rapanos, the Supreme Court recognized clear limits on the reach of the CWA, holding that the federal government could not regulate all “tributaries” to navigable waterways, and reaffirmed that isolated water bodies are off-limits to federal regulators.  Indeed, the lawsuit filed today is based on the fact that the new rule violates Rapanos and other legal principles.

In his testimony to Congress opposing the rule, Jack Field, Executive Vice President for the Washington Cattlemen’s Association, stated:  “One thing is clear, the definition [of waters of the United States] is not clear.  The [rule] would include ditches as Waters of the U.S. if a regulator can distinguish a bed, bank, and ordinary high water mark.  The proposal also would make everything within a floodplain and a riparian area a federal water by considering them ‘adjacent waters.’  I don’t think the negative impacts of this definition can be overstated.”

Statement by PLF’s Reed Hopper

“We are suing to block the administration’s breathtaking attempt to control practically every pond, stream, and ditch in the country,” said PLF Principal Attorney M. Reed Hopper, who successfully argued the Rapanos case at the Supreme Court.  “This new regulation is an open-ended license for federal bureaucrats to assert control over nearly all of the nation’s water, and much of the property, from coast to coast.

“This regulation 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,” Hopper continued.  “Under its vague and limitless terms, the only waters that are clearly not subject to federal regulatory power are a few that are expressly excluded in the Clean Water Act, including artificial reflective pools, ornamental waters, some ground water, and gullies.

“In short, the administration is engaged in a sweeping power grab,” said Hopper.  “Property owners around the country will be faced with the prospect of being micro-managed by federal bureaucrats.  This turns our federal system on its head.  Under our constitutional framework, the states and localities are charged with the primary role in land use regulation and local water-quality protection.  The Obama Administration’s sweeping new rule usurps the authority and responsibility of the states, and empowers bureaucrats in Washington D.C. to act as zoning and land use czars for the entire nation.”

Statement by California Cattlemen’s Association

“With this rule, the EPA and Corps are seeking an extraordinary expansion of their jurisdictional authority and significantly increasing regulatory burdens on California’s ranchers,” said Billy Gatlin, Executive Vice President of the California Cattlemen’s Association.  “Many elements of the rule are also troublingly vague, creating confusion over what routine ranching activities might cause cattlemen to run afoul of the regulation.  CCA has been adamant since the rule was proposed that the EPA and Corps’ proposal far exceeds the limits imposed on those agencies by the CWA, and CCA is proud to partner with PLF and our industry allies to overturn the rule and protect the property rights of our members.”

Statement by New Mexico Cattle Growers’ Association

“In the arid, brittle climate of New Mexico, water is the source of all life,” said Jose Varela Lopez, President, New Mexico Cattle Growers’ Association.  “Without access to water we are finished … as is the rest of the nation.  My family has been on our land for 14 generations.  I believe we have the history to prove that we are caretakers of the water and the land without the help of the Environmental Protection Agency.”

Statement by New Mexico Federal Lands Council

“Government management and regulation or over-regulation hasn’t helped our forests and grasslands one bit,” noted Don L. (Bebo) Lee, President, New Mexico Federal Lands Council.  “In fact, it has harmed our land and our watershed.  We do not need the federal government doing the same harm to our water.”

Statement by New Mexico Wool Growers, Inc.

“How does the federal government expect ranchers and farmers to feed the nation,” asked Leroy Cravens, President, New Mexico Wool Growers, Inc.  “If water isn’t readily available to agriculture, outside the whims of Mother Nature, the American people won’t eat.”

Statement by John Duarte of Duarte Nursery

“The EPA and Army Corps of Engineers are already grossly overreaching beyond the authority given to them in the Clean Water Act,” said John Duarte, president of family-owned Duarte Nursery, based in Hughson, Calif.  “With this new WOTUS rule they will completely obliterate any ties to congressional intent and common sense.”

The case is Washington Cattlemen’s Association et. al. v. U.S. Environmental Protection Agency, et. al.  More information, including the complaint and a podcast, may be found at:  www.pacificlegal.org.

About Pacific Legal Foundation
Donor-supported PLF is a watchdog organization that litigates for limited government, property rights, individual rights, and a balanced approach to environmental regulations, in courts nationwide.  PLF represents all clients free of charge.

from Reed Hopper
Pacific Legal Foundation

“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” is the biggest power gab in U.S. history and should be stricken.  That’s what we are asking the court to do.

In addition to PLF, numerous States have filed suit challenging the new rule here and here.  Others suits will be forthcoming.