e-Edition: September 2017

WATERS OF THE UNITED STATES

EXPANDED DEFINITION


 

The U.S. EPA and Army Corps of Engineers finalized a rule in August of 2015 that significantly expanded the definition of “waters of the United States (WOTUS)” under the Clean Water Act (CWA) of 1972.  The concerns of farmers, ranchers, developers, and other industry were virtually ignored during the enactment of this rule, and many feel that the EPA vastly expanded the scope of its authority beyond limits that had been previously approved by Congress and the Supreme Court. 


The Rule eliminated any limitations that the term “navigable” previously imposed on the jurisdiction of EPA and the Corps, allowing them to regulate any or all waters within a state, no matter how small and regardless of whether they were connected to federal interests.  Opponents of the rule argued that it provided none of the certainty and clarity that it originally promised, and that it provided the unlimited authority to regulate low-lying ditches that collect water, ephemeral drainage areas, isolated ponds, and isolated wetlands.  Litigation challenging the rule began in several states across the U.S.

 

The Government Accountability Office (GAO) issued a ruling that EPA violated federal law by engaging in “covert propaganda” through its use of social media to urge and gain public support for the Obama administration rule that intended to better protect the nations waters.  Federal law prohibits government agencies from engaging in propaganda and lobbying.  The EPA claimed that it did not encourage the public to contact any legislators regarding the rule.  Although the GAO’s ruling did not lead to any civil or criminal prosecution, it did confirm that the EPA used illegal tactics to manufacture ill-informed support for the rule.  There were a total of thirty one lawsuits filed against the original WOTUS rule.

 

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