“Congress granted EPA authority to regulate the ‘waters of the United States.’ But EPA is attempting to use that authority to regulate millions of acres of bone-dry land, including vast sections of the desert Southwest. The appeals court needs to block this power grab.”
—Richard Samp, WLF Chief Counsel
WASHINGTON, DC—Washington Legal Foundation today called on the US Court of Appeals for the Sixth Circuit to overturn Environmental Protection Agency (EPA) regulations that assert greatly expanded Clean Water Act (CWA) regulatory authority by adopting a very broad definition of what constitutes the “waters of the United States.” WLF’s brief filed in In re: EPA, Clean Water Rule: Definition of “Waters of the United States” argues that the regulations are inconsistent with Supreme Court interpretations of the CWA and raise serious federalism concerns by impinging on States’ traditional preeminent role in managing and conserving water resources.
WLF’s brief focuses principally on the procedurally irregular manner in which EPA (in conjunction with the U.S. Army Corps of Engineers) adopted its final regulations. WLF argues that EPA violated the Administrative Procedure Act (APA) by failing to provide interested parties with adequate notice of its proposed regulations and a meaningful opportunity to participate in the rulemaking process. WLF accuses EPA of engaging in a regulatory “switcheroo” by making last-minute changes on which no one had an opportunity to comment.
WLF also argues that EPA acted arbitrarily and capriciously, in violation of the APA, by failing to provide a “satisfactory explanation” for its regulatory actions. WLF’s brief is particularly critical of EPA’s assertion of jurisdiction over non-navigable “tributaries,” which EPA defined so broadly that the term encompasses dry land in the arid Southwest over which no water has flowed for many decades.
Multiple court challenges to EPA’s new regulations are pending in federal courts across the country. Both the Sixth Circuit and a federal district court in North Dakota have issued injunctions staying enforcement of the regulations until after the litigation is concluded.
Upon filing its brief, WLF issued the following statement by Chief Counsel Richard Samp: “Congress granted EPA authority to regulate the “waters of the United States.” But EPA is attempting to use that authority to regulate millions of acres of bone-dry land, including vast sections of the desert Southwest. The appeals court needs to block this power grab. It is particularly disturbing that EPA, in its haste to issue regulations, has run roughshod over so many procedural requirements applicable to the regulation-drafting process.”
WLF is a free-market, public-interest law firm and policy center that regularly litigates in federal court to ensure that administrative agencies adhere to the rule of law.