Southeastern Legal Foundation v. Army Corps of Engineers and EPA

Federal Lawsuit Challenging the EPA's Unconstituitonal New Definition of "waters of the United States"

About the Case

You want to build a house, add a pool, build a necessary retaining wall, or even just fix a drainage problem in your front yard. No problem. You draw up your plans, walk down to city hall, and seek a permit. Sometimes that process is easy and sometimes it’s not, but either way you are confident that you need to obtain approval from only your local government. Right? Wrong. In 2015, Obama and his power-hungry Environmental Protection Agency (EPA) unilaterally redefined “waters of the United States” (WOTUS) such that the federal government can now exercise jurisdiction over nearly every piece of property in America. So now, to build that home or put in that retaining wall, you very well may also need to seek (expensive) approval from the EPA and Army Corps of Engineers. As a continuation of its successful work challenging the EPA and its repeated violations of the constitutional, statutory, and case law, Southeastern Legal Foundation filed several suits on behalf of itself and industry clients challenging the Obama EPA’s unlawful actions in its unprecedented overreach.

On May 26, the Army Corps of Engineers and Environmental Protection Agency signed a new rule redefining a crucial term in the Clean Water Act – “waters of the United States” (WOTUS). Under the new WOTUS definition, the Agencies have significantly expanded their authority and can assume jurisdiction over waters and water-like features that – up until this time – they were precluded from touching. The WOTUS rule will have far-reaching impacts as it could affect any landowner with a wet feature present on the property. A broad range of industries and interests, ranging from agriculture to manufacturing to development and construction, as well as existing large facilities occupying sizeable footprints, will be directly and negatively impacted by WOTUS.

The WOTUS rule differs in several respects from the previous rule. Three of the most egregious examples of Agency overreach come in newly added definitions, none of which are rooted in the text of the Clean Water Act. (1) tributary; (2) adjacency and (3) other water jurisdiction will allow the Agencies to assert jurisdiction over waters never before contemplated as jurisdictional. Under the prior rule, a tributary was jurisdictional only if it was determined – after a site-specific study – that it significantly affected other waters in the area. Under the new WOTUS rule, every tributary is per se jurisdictional with no study required. Under the old rule, only adjacent wetlands could be considered jurisdictional. Under the new WOTUS rule, any adjacent wetland or water is per se jurisdictional. And, the definition of adjacency is a bit of a misnomer as any water can be considered “adjacent” to another water if any part of it is within 1,500 feet of the ordinary high water mark of the original water. Finally, under the old rule, “other waters” were jurisdictional only if those “other waters” could affect interstate commerce. Under the new WOTUS rule, the Agencies got rid of the interstate commerce connection requirement entirely. Whether an “other water” is jurisdictional depends on what type of water it is and where it is located. Sometimes, an otherwise isolated water or wetland can be considered jurisdictional if it is within 4,000 feet of a traditionally jurisdictional water. To repeat, the new WOTUS rule literally covers much ground.

Besides divorcing itself from the statutory text, the WOTUS rule also ignores recent Supreme Court precedent. In cases in 2001 and 2006, the Supreme Court questioned or struck down the Agencies’ broad interpretation of their jurisdictional authority under the Clean Water Act. Instead of following that precedent and promulgating a rule more closely tied to the statutory text, the Agencies created a rule granting themselves more authority over more waters and water features.

SLF’s is challenging EPA’s unauthorized overregulation and the executive branch’s power grab from the legislative branch and seeking to restore constitutional separation of powers between the three branches. The effect of EPA’s interpretation of the Clean Water Act (CWA) by redefining WOTUS has the effect of granting it almost limitless power and jurisdiction, and is akin to EPA’s interpretation of the Clean Air Act (CAA) in our present and future CAA challenges. The most recent cases having been successfully argued before the United States Supreme Court.

The case made its way up to the United States Supreme Court on the issue of what court the challenge could be filed in.

Case Status

Closed - Won

Court

United States Supreme Court

Why This Matters

When Obama’s EPA and Army Corps redefined “waters of the United States” they not only took for themselves jurisidction over nearly every square inch of America in violation of the Constitution, but they did so without following the statutory procedures for promulgating rules and regulations.

SLF general counsel Kimberly Hermann explains:

The WOTUS Rule is one of the most egregious overreaches during the Obama years and, in fact, one of the biggest overreaches in American history. For years, agriculture, industry and property owners have asked for a clear rule on what constitutes ‘covered’ land – as you know, the cases are all over the place in terms of what’s covered.So, in response, the EPA and Army Corps gave us this 4,000 foot rule, which covers nearly the entire U.S. That can’t possibly be the right answer under the Clean Water Act. So, we’ve attacked it.

The procedural elements of the WOTUS rulemaking process are equally, if not more important, than the details of the rule. Congress conceived of the CWA as a partnership between the states and the federal government, with the federal government primarily playing a supporting role in the states’ efforts to protect their waters. To fulfill Congress’ intentions, the agencies must craft a WOTUS definition that is fully supportive of states’ primary authority over water. Further, both the CWA and a myriad of generally applicable administrative laws, regulations, and orders require meaningful and transparent engagement with the states and the public in the rulemaking process. Building a WOTUS regulation that remains true to Congress’ goals and all other legal mandates requires real collaboration with the states, the regulated entities, the scientific community, legal experts, and other government agencies.

As former Administrator Pruitt acknowledged in 2017 when speaking at the Environmental Council of States, “Rule of law does matter because it provides clarity to those you are regulating.” And unfortunately, “[f]or the last several years that confidence in the rule of law has been put in doubt.” The agencies, under the direction of the Obama Administration, balked at state and public input—considering only those comments from groups aligned with their ideology. This silencing of the public and regulated community, and failure to engage all the requisite agencies and groups, is most evident in the efforts by the Obama Administration to define WOTUS. If the agencies (or even EPA in isolation) again attempt to craft a rule wholly within their own walls, the result will almost certainly be legally indefensible and unworkable in practice, with no predictability for the regulated community.

In the News

Why every property owner should fear EPA’s “waters of the United States” rule | Fox News

EPA land grab? Agency claims authority over more streams, wetlands | Fox News

Why This Matters

When Obama’s EPA and Army Corps redefined “waters of the United States” they not only took for themselves jurisidction over nearly every square inch of America in violation of the Constitution, but they did so without following the statutory procedures for promulgating rules and regulations.

SLF general counsel Kimberly Hermann explains:

The WOTUS Rule is one of the most egregious overreaches during the Obama years and, in fact, one of the biggest overreaches in American history. For years, agriculture, industry and property owners have asked for a clear rule on what constitutes ‘covered’ land – as you know, the cases are all over the place in terms of what’s covered.So, in response, the EPA and Army Corps gave us this 4,000 foot rule, which covers nearly the entire U.S. That can’t possibly be the right answer under the Clean Water Act. So, we’ve attacked it.

The procedural elements of the WOTUS rulemaking process are equally, if not more important, than the details of the rule. Congress conceived of the CWA as a partnership between the states and the federal government, with the federal government primarily playing a supporting role in the states’ efforts to protect their waters. To fulfill Congress’ intentions, the agencies must craft a WOTUS definition that is fully supportive of states’ primary authority over water. Further, both the CWA and a myriad of generally applicable administrative laws, regulations, and orders require meaningful and transparent engagement with the states and the public in the rulemaking process. Building a WOTUS regulation that remains true to Congress’ goals and all other legal mandates requires real collaboration with the states, the regulated entities, the scientific community, legal experts, and other government agencies.

As former Administrator Pruitt acknowledged in 2017 when speaking at the Environmental Council of States, “Rule of law does matter because it provides clarity to those you are regulating.” And unfortunately, “[f]or the last several years that confidence in the rule of law has been put in doubt.” The agencies, under the direction of the Obama Administration, balked at state and public input—considering only those comments from groups aligned with their ideology. This silencing of the public and regulated community, and failure to engage all the requisite agencies and groups, is most evident in the efforts by the Obama Administration to define WOTUS. If the agencies (or even EPA in isolation) again attempt to craft a rule wholly within their own walls, the result will almost certainly be legally indefensible and unworkable in practice, with no predictability for the regulated community.