“Pacific Legal Foundation applauds the Trump administration’s announcement of its withdrawal of the infamous WOTUS rule,” said James Burling, PLF’s Director of Litigation. “But it’s only a start. More must be done.
“The WOTUS rule called for a dramatic, unprecedented and unconstitutional expansion of the federal government’s authority to regulate all manner of land use, no matter how remote and tenuous the connection is to an actual navigable water,” Burling noted. “The Constitution permits the federal government to regulate only places and activities that affect interstate commerce. This is not a carte blanche for the feds to regulate anything they please no how remote the connection.
“The WOTUS rule purported to give the federal government the right to regulate all manner of land use activities on land that could be thousands of feet from a nonnavigable stream that might be connected, eventually, to a navigable waterway,” he continued. “The WOTUS rule went far beyond the authority to regulate wetlands adjacent to navigable waterways, and threatened farmers, ranchers, home builders, and home owners across the nation with expensive and onerous permitting requirements, and criminal penalties and millions of dollars in fines for activities as innocent as plowing a field.
“But the WOTUS rule withdrawal is not enough,” Burling said. “Even before the rule, the EPA and Corps of Engineers had been terrorizing land owners with the so-called Rapanos guidance, named after a Supreme Court case where the federal government lost its claim that it could regulate John Rapanos’s fields. Justice Scalia, writing for four members of the Court, said that the federal government could regulate a purported wetland only if there were a surface connection with a navigable water.
"But the EPA and Corps have ignored that statement, instead relying on the opinion of Justice Kennedy who, writing only for himself, said all that is needed for federal jurisdiction is a ‘significant nexus’ to a navigable waterway. But the term ‘significant nexus’ is undefined and the federal government has interpreted it to be absurdly broad, arguing that if a single molecule of water dropped on dry land ever reaches a navigable water, even years later, that is enough to force landowners to obtain federal permits before using the land. This so-called Rapanos guidance was never adopted pursuant to the Administrative Procedures Act, violates the Congressional Review Act, and flies in the face of the Supreme Court’s holding in Rapanos.
“In short, while Pacific Legal Foundation applauds the revocation of the WOTUS rule, a crucial next step will be for the government to likewise drop the Rapanos guidance and instead adopt the Scalia opinion from that case.”
Source: www.pacificlegal.org