Clean Water Act “guidance” faces stiff opposition

PLF’s recent unanimous Supreme Court win in the Sackett case has enlivened the debate about agency abuse and federal jurisdiction under the Clean Water Act.

In Sackett, the Supreme Court once again chastised the agency for not adopting clear, formal rules delineating federal jurisdiction over “navigable waters.” But the EPA and Corps of Engineers are in the grips of exacerbating the problem for landowners by adopting new “guidance” allegedly interpreting “navigable waters.” To avoid judicial review, this “guidance” is framed as a “nonbinding, interpretive” policy. But the “guidance” does in fact have binding effect. More importantly, it expands agency authority more than any prior interpretation of the Act. The proposed “guidance” is inconsistent with Supreme Court decisions, the statutory language and undoubtedly exceeds constitutional authority. The “guidance” is so expansive that the EPA and Corps expressly refuse to categorically exclude swimming pools and ornamental ponds, saying that these water features are only “generally exempt” from federal regulations. That leaves landowners with small water bodies on their property, like the Sacketts, guessing about whether their property will be subject to federal control.

The proposed “guidance” is now under review by OMB and could be finalized and adopted any time. We filed extensive comments on the “guidance” here

In response to the Sackett’s plight, and thousands like them, Senator Rand Paul drafted a bill, Defense of Environment and Property Act of 2012, to define “navigable waters” with bright line boundaries in an effort to provide certainty to the regulated public and establish clear limits to federal authority under the Clean Water Act.  We provide a summary of the bill here. Likewise, Senator Barrasso and 25 other Senators have put forward a bill entitled Preserve the Waters of the United States Act that expressly prohibits the EPA and Corps from relying on the proposed “guidance” in any way.

These bills have garnered support among many ag and property rights groups.