Clean Water Act Battle Lines and Supreme Court Rulings

House and Senate GOP Members are calling on the Office of Management and Budget to reject the Environmental Protection Agency (EPA) and United States Army Corps of Engineers’ (USACE) “Guidance” for identifying waters protected by the Clean Water Act.

The Members state in part, “We continue to be concerned that this so-called guidance misconstrues and manipulates the legal standards announced in the SWANCC and Rapanos Supreme Court decisions…and will not further the goal of clarifying which waters are subject to CWA jurisdiction. We are also concerned that the Administration is seeking, through so-called guidance, to change the scope and meaning of the CWA.”

In fact, U.S. Senators John Barrasso, R-Wyoming., Jim Inhofe, R-Oklahoma., Dean Heller, R-Nevada., Jeff Sessions, R-Alabama., and 26 other Senators have introduced the “Preserve the Waters of the U.S. Act.” This legislation is intended to prevent the EPA and USACE from issuing their “Final Guidance on Identifying Waters Protected by the Clean Water Act.”

Senator Inhofe said, “The Obama-EPA continues to pursue a water guidance document that sets the stage for the federal government to take over virtually every body of water in the United States from irrigation ditches to puddles of water on the road. Republicans believe that any changes to the Clean Water Act through the Administration should be done through rulemaking, which requires a transparent process that allows for a public comment period. Instead, the Agencies appear to be skipping these required steps and relying on this guidance document to change the scope and meaning of the Clean Water Act. We will continue fighting this every step of the way.”

This action comes on the heels of the unanimous Supreme Court ruling in favor of property owners in Sackett v. EPA. In this case, the Sacketts (property owners) attempted to prove that their property was not a wetland, but EPA proceeded to issue a compliance order that if not obeyed, would result in fines of up to $75,000 a day.  The Supreme Court issued a unanimous decision in favor of the property owners.  Justice Alito’s concurring opinion provides in part:

“The position taken in this case by the Federal Government—a position that the Court now squarely rejects—would have put the property rights of ordinary Americans entirely at the mercy of Environmental Protection Agency (EPA) employees.”

“The reach of the Clean Water Act is notoriously unclear.  Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the Act, and according to the Federal Government, if property owners begin to construct a home on a lot that the agency thinks possesses the requisite wetness, the property owners are at the agency’s mercy.”

The Dragun Corporation was involved in the Rapanos Case (Supreme Court Case mentioned above) when Dr. Michael Sklash, Dragun senior hydrogeologist, was asked to evaluate the nexus between the groundwater and surface water at the Raponos properties.

Certainly, the CWA will continue to be a political and environmental hot button that bears watching.


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