EPA Waters of the US Rule: Litigation –

The US Environmental Protection Agency, (EPA) along with reluctant Co-Lead Agency, US Army Corp of Engineers (USACE), has finalized the Waters of the US (WOTUS) Rule.  The new WOTUS Rule is so broad, ambiguous and vague that it seemingly could sanction regulation over nearly every public or private acre in the US.

A USACE Memorandum to EPA, released as part of a Congressional Oversight Hearing, went so far as to request removal from documents, stating, “the Corps had no role in selecting or analyzing the data that EPA used in drafting either document. As a result, the documents can only be characterized as having been developed by the EPA, and should not identify the Corps as an author, co-author or substantive contributor. To the extent that the term “agencies” includes the Corps of Engineers; any such reference should be removed. Finally, the Corps of Engineers logo should be removed from these two documents. To either imply or portray USACE as a co-author or contributor to these documents, other than as the provider of raw unanalyzed data, is simply untrue.

Now that’s collaboration.

By finalizing the WOTUS Rule, EPA has – once again – circumvented Supreme Court of the US (SCOTUS) decisions limiting its jurisdiction  over navigable waterways and demonstrated outright disdain for the Courts, States AND Congress by perverting the scope of the Clean Water Act beyond recognition.

Despite 1 Million comments and an untold  number of letters on its Draft Rule, EPA proceeded to violate the US Constitution, the Clean Water Act and two more SCOTUS decisions.  In 2001, SCOTUS – in Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, found Defendants did not demonstrate a “significant nexus to navigable waters” rejecting the “isolated waters” concept.

Following the SWANCC decision, EPA then attempted to control ditches, drains, temporary streams, and other “relatively permanent” waters by asserting jurisdiction of waters considered “connected” to navigable waters. A 2006 challenge of EPAs attempt to control more waters through its “connected” rationale resulted in the SCOTUS decision Rapanos v. United States. For its part, Rapanos set distinct boundaries to EPAs authority under the US Constitution, Clean Water Act and precedent Statutory law.

EPAs overreaching WOTUS rule has provoked a minimum of 10 lawsuits with the plaintiffs’ list including 31 states and > 60 other plaintiffs.  On August 27, 2015 U.S. District Judge Ralph Erickson of North Dakota issued a temporary injunction ‘staying’ the WOTUS rule which was scheduled to take effect the next day. EPA defiantly declared the stay did not apply nationwide but only in the 13 plaintiff states in the case before Judge Erickson.

In response to EPAs contention, Attorney General Wayne Stenehjem, on behalf of North Dakota, and the 12 other state plaintiffs, requested that preliminary injunction apply nationwide. On September 4, 2015, Judge Erickson issued an order stating EPA and the Army Corps of Engineers were only prohibited from applying WOTUS in North Dakota and the named plaintiff states in the case. Judge Erickson stated in the order, “… there are compelling reasons in favor of both extension of the injunction and limitation of the injunction … On the one hand, there is a desirability for uniformity regarding a national rule with national application. On the other hand, there is the idea of respecting the decisions of other courts and other sovereign states,”.

In the Sixth Circuit court of appeals in Cincinnati, Ohio, on September 9, 2015, Kansas joined 17 other states encompassing four separate legal challenges of WOTUS in filing a motion. The motion requested the court to either block the WOTUS rule or send the cases back to the district courts to make clear that initial jurisdiction lies with them, not the court of appeals.

A 2-1 decision on October 9, 2015, by the Sixth Circuit appeals court stayed the implementation of the WOTUS rule nationwide with the majority opinion stating, “A stay honors the policy of cooperative federalism that informs the Clean Water Act … (“It is the policy of Congress to recognize, preserve, and protect the primary responsibilities and rights of the States to prevent, reduce, and eliminate pollution.”). In light of the disparate rulings on this very question issued by district courts around the country—enforcement of the Rule having been preliminarily enjoined in thirteen states—a stay will, consistent with Congress’s stated purpose of establishing a national policy, 33 U.S.C. § 1251(a), restore uniformity of regulation under the familiar, if imperfect, pre-Rule regime, pending judicial review.”

A third legal defeat was handed to the 0bama administration on October 13, 2015, when the Judicial Panel on Multi-district Litigation issued a unanimous 7-0 decision denying transfer of the district court cases that have been filed challenging the EPA and USACEs’ WOTUS Rule. The Department of Justice had asked the panel to transfer and centralize all of the pending cases – including the North Dakota case – to the federal district court in the District of Columbia. North Dakota opposed the request, arguing that its case was in a unique procedural position due to it being the only case with a preliminary injunction – and that the federal Agencies had not met their burden to justify transfer. The motion to transfer hearing was held on October 1 in New York City, more than a week prior to the decision to stay WOTUS nationwide was issued.

The cases continue to work their way through the court system, as the US Senate failed by just a few votes to override a veto of a resolution of disapproval of the WOTUS rule, which would have nullified the rule had they succeeded in overriding the veto.

The most recent legal entanglement came, when US Senators James Inhofe (Ok) and Ben Sasse (NE), in Ua letter to Attorney General Loretta Lynch, requested the DOJ to investigate whether the EPA “knowingly and willfully violated” federal law as part of the effort to finalize the Clean Water Rule in 2015. The request followed the non-partisan Government Accountability Office (GOA) issuing the report “Environmental Protection Agency—Application of Publicity or Propaganda and Anti-Lobbying Provisions.”

The GOA Decision Summary states, “The EPA violated publicity or propaganda and anti-lobbying provisions contained in appropriations acts with its use of certain social media platforms in association with its “Waters of the United States” (WOTUS) rulemaking in fiscal years 2014 and 2015. Specifically, EPA violated the publicity or propaganda prohibition though its use of a platform known as Thunderclap that allows a single message to be shared across multiple Facebook, Twitter, and Tumblr accounts at the same time. EPA engaged in covert propaganda when the agency did not identify EPA’s role as the creator of the THUNDERCLAP message to the target audience. The agency’s # DitchtheMyth and # CleanWaterRules social media campaigns did not implicate the publicity or propaganda prohibition. EPA also violated anti-lobbying provisions though its hyperlinks to certain external Web pages in an EPA blog post. Both of the external Web pages led to appeals to the public to contact Congress in support of the WOTUS rule, which taken in context, constituted appeals to contact Congress in opposition to pending legislation. EPA associated itself with these messages through its decision to include the hyperlinks in its blog post.”

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