PLF statement on water rule stay


SACRAMENTO, CA – October 12, 2015 – (RealEstateRama) — The Sixth U.S. Circuit Court of Appeals issued a nationwide stay of the Obama Administration’s drastic new rule that gives an open-ended definition to the “waters of the United States” subject to federal control and regulation under the Clean Water Act. The rule was issued June 29, 2015, and was immediately challenged in ten different suits involving more than 30 states and scores of private parties. In Pacific Legal Foundation’s own case against the rule, pending in the Federal District Court for the District of Minnesota, PLF represents a number of ranch and farm organizations, along with other property owners.

PLF Principal Attorney M. Reed Hopper posted an explanatory memo on today’s Sixth Circuit ruling at the PLF Liberty Blog.

Hopper also issued this statement today: “Whichever court ultimately decides the fate of the new rule, today’s stay decision is noteworthy in its conclusion that the rule appears to be invalid on its face because: (1) it is arguably inconsistent with Supreme Court decisions limiting the scope of the Clean Water Act, including PLF’s 2006 case of Rapanos v. United States; (2) it was apparently issued without adequate public review and comment; and (3), it may undermine the Clean Water Act’s goal of recognizing the primary role of the states in protecting local land and water use.”

“As PLF argues in our challenge to the sweeping rule, the Obama Administration’s new rule represents an unprecedented expansion of federal power that could bring virtually all the nation’s water and much of the land under command-and-control direction from Washington, D.C.,” Hopper continued. “Its vast expansion of the Clean Water Act jurisdiction violates both the terms of the Act and the Constitution’s limits on federal authority. Under its vague and limitless terms, the only waters that are clearly not subject to federal regulatory power are a few that are expressly excluded, including artificial reflective pools, ornamental waters, and some ground water.”

“In short, the administration is engaged in a sweeping power grab,” said Hopper. “Property owners around the country will be faced with the prospect of being micro-managed by federal bureaucrats. This turns our federal system on its head. Under our constitutional framework, the states and localities are charged with the primary role in land use regulation and local water-quality protection. The new rule usurps the authority and responsibility of the states, and empowers bureaucrats in Washington D.C. to act as zoning and land use czars for the entire nation.”

“Today’s order from the Sixth Circuit seems to indicate a recognition that the Obama Administration’s water bureaucrats are on a reckless, out-of-control water ride, and intervention from responsible custodians of constitutional principles is necessary,” said Hopper.

Pacific Legal Foundation’s own challenge to the new rule is Washington Cattlemen’s Association et. al. v. U.S. Environmental Protection Agency, et. al. More information, including the complaint, may be found at:

About Pacific Legal Foundation
Donor-supported Pacific Legal Foundation is a watchdog organization that litigates for limited government, property rights, individual rights, and free enterprise, in courts nationwide. PLF represents all clients free of charge.

Contact: M. Reed Hopper
Principal Attorney
Pacific Legal Foundation

(360) 279-0937

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