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Court declares Obama’s EPA “Waters of the United States Rule” unlawful

Court declares Obama’s EPA “Waters of the United States Rule” unlawful

“…vast expansion of jurisdiction over waters and land traditionally within the states’ regulatory authority cannot stand…”

Back in 2015, we covered the Obama administration’s far-reaching Waters of the United States (WOTUS) Rule and the pushback it received at the time.  States’ suits are making their way through the courts, and there is good news to report!

U.S. District Judge Lisa Godbey Wood has handed a victory to the state of Georgia and nine other states that sued the federal government (and to the rest of the nation) by declaring that the  WOTUS Rule is unlawful.

Wood stated that the rule, which was intended to provide better protection of the nation’s water, violated the Clean Water Act and the Administrative Procedure Act, and she remanded it back to the Environmental Protection Agency and the Army Corps of Engineers for further work.

She wrote that while the agencies have authority to interpret the phrase “waters of the United States,” that authority isn’t limitless, and therefore their decisions in doing so do not fall under what’s called Chevron deference, a matter of case law in which — for lack of a better phrase — the tie goes to the agency.

Legal Insurrection readers may recall that implementation of the rule led to a Wyoming farmer being fined $37,500 a day for constructing a stock pond on his own property.

The American Farm Bureau Federation, which earlier this year won a decision in Texas that also found the rule legally wanting, praised Wood’s decision.

“The court ruling is clear affirmation of exactly what we have been saying for the past five years,” AFBF General Counsel Ellen Steen said. “The EPA badly misread Supreme Court precedent. It encroached on the traditional powers of the states and simply ignored basic principles of the Administrative Procedure Act when it issued this unlawful regulation.”

Wood found the WOTUS rule’s “vast expansion of jurisdiction over waters and land traditionally within the states’ regulatory authority cannot stand absent a clear statement from Congress in the CWA. Since no such statement has been made, the WOTUS Rule is unlawful under the CWA.”

She also determined the agencies’ “inclusion of all interstate waters in the definition of ‘waters of the United States,’ regardless of navigability, extends [their] jurisdiction beyond the scope of the CWA because it reads the term navigability out of the CWA.”

Utah Attorney General Sean D. Reyes, representing one of the other states involved with this case, was also delighted with Wood’s ruling.

The 2015 WOTUS Rule is a clear example for federal overreach that infringed on the States’ traditional role as primary regulators of land and water resources within their borders. We are proud to have fought for this relief, and we look forward to reforms that will permanently relieve farmers and landowners of the unnecessary burdens that the 2015 WOTUS Rule created.

Interestingly, U.S. Sen. Mike Braun (R-IN) and U.S. Sen. Joni Ernst (R-IA) recently introduced the “Define WOTUS Act,” which reasserts Congressional responsibility to define what the term, “Waters of the United States,” actually means.

“The Obama-era WOTUS rule threatened Iowa’s farmers, manufacturers, and small businesses by giving the federal government authority to regulate water on 97 percent of land in our state,” said U.S. Senator Joni Ernst. “President Trump and his administration have taken tremendous steps to roll back this far-reaching regulation and provide for more certainty with a new, clearer definition of WOTUS. But it’s the job of Congress to make a new, reasonable definition permanent, and that’s what this bill does—it ensures more predictability and workability for Iowans for years to come.”


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notamemberofanyorganizedpolicital | August 24, 2019 at 8:12 pm

Thank Goodness.

In all seriousness the out-dated EPA was even saying you had on control of even puddle of water in your own backyard!


(I know because having to be in meetings with some of those “wacky” government employees who were all in gloat about it.

So CWA actually contains the word “navigable”, and yet it took this many years for a court to say no to Obama.

Horrible. If the political pressure had been the other way with a different president, it might never have happened.

That’s some legacy, Mr. Obama.

I’m a man ahead of my time. Ten (or so) years ago, North Carolina tried to commandeer all property within 50′ of a small stream – or even a drainage ditch. The DENR had a “public hearing” which I attended. I took a sign reading “My property is not your resource” and handed out flyers regarding property rights. When I spoke up at the meeting, the chief bureaucrat asked me to leave.

    pst314 in reply to snopercod. | August 25, 2019 at 9:30 am

    Sounds like it would have been morally justified to ask that bureaucrat to leave America.

    murkyv in reply to snopercod. | August 25, 2019 at 6:28 pm

    Indiana Drainage Code of 1963 is clear that County regulated drains have a 75′ easement that the county “can” control unless a variance is granted

    You can’t do anything to impede the flow of your neighbors water through your property

Hopefully Congress will provide a clear definition. To include the ‘when navigable’. Does navigable mean at the time a territory or the original 13 colonies became a state? Does it mean navigable at date of Clean water act passage? Does it mean navigable today? Navigable at some other specific time?

This is a huge issue for western States, property owners.

    txvet2 in reply to CommoChief. | August 24, 2019 at 9:37 pm

    And they need to define much more precisely the word “navigable”. Does that include canoes, inner tubes or inflatable rafts?

      randian in reply to txvet2. | August 24, 2019 at 9:59 pm

      Do you even need a floating conveyance of some kind? Is simply being able to walk through a body of water sufficient to deem it navigable?

        CommoChief in reply to randian. | August 24, 2019 at 10:38 pm

        Generally speaking yes navigable would mean a canoe. Wading through a small shallow body of water is just walking.

        Where this gets super convoluted is how a particular state views total use of rivers and streams. Most eastern states use riparian rights. Most western States do not follow that doctrine.

        In NM the dust up over use of public waters or more accurately the ability to access public waters was cleared up about two years ago. State constitution says all waters belong to the people. Problem was folks were not content to stay in the water, they wanted to enter onto the privately owned land adjacent to the water and fish, take a hike, walk around taking photographs even have a picnic. So all that activity is considered trespassing.

        So in NM as long as one enters public waters from a public access point and stays in the water until leaving by a public access point anyone can enjoy the water. Property owners of adjacent property can not keep you out of the water. They can keep you off their property. There is not an equivalent to the tide line as with beachfront property, in NM that I have seen.

        Each state has different statutes and different case law so my advice is don’t trespass across private property to access public waters.

          puhiawa in reply to CommoChief. | August 24, 2019 at 11:27 pm

          Nonsense. There is a specific definition in place for over 100 years…until Obama.

          Edward in reply to CommoChief. | August 25, 2019 at 8:55 am

          Texas is essentially the same, rivers, streams, etc. are public and may be used by the public as long as the public gains access from a public access point. Leaving the public water on other than a public access point is trespass unless invited by the landowner.

          Milhouse in reply to CommoChief. | August 25, 2019 at 7:02 pm

          Huh? How can there have been a definition for 100 years when the Clean Water Act didn’t pass until 1972?

          venril in reply to CommoChief. | August 26, 2019 at 2:45 pm

          Perhaps because there was an accepted definition prior to 1972?

      willford2 in reply to txvet2. | August 26, 2019 at 10:05 am

      Yes it does under obozo’s rule, Just about paper boats also included. FERC & EPA still has way to much power over states rights.

    Milhouse in reply to CommoChief. | August 24, 2019 at 11:07 pm

    Hopefully Congress will provide a clear definition. To include the ‘when navigable’. Does navigable mean at the time a territory or the original 13 colonies became a state? Does it mean navigable at date of Clean water act passage? Does it mean navigable today? Navigable at some other specific time?

    The only definition that makes sense is that the act applies to waterways that are navigable at any given time. If a waterway stops being navigable it’s no longer covered by the act; if it starts being navigable again it comes back under the act.

    It also seems to me that it should not cover even navigable waterways that are entirely within one state, with no outlet, so that they cannot be used in interstate or international commerce. Again, if someone were to dig a canal that links this waterway to the outside world then it would come in under the act.

      Cleetus in reply to Milhouse. | August 25, 2019 at 8:04 am

      Where I used to live in Idaho there was a “navigable” stream that flowed around four months of the year from snow pack melt/runoff. The rest of the year it was a bone dry river bed that looked little different from the surrounding desert. EPA demanded that they be allowed to legislate everything surrounding this stream whether it contained water or not. Those regulations impacted everyone’s activities 12 months a year.
      Are you claiming those regulations should be enforced only during those time the stream is filled and not the rest of the year or should they be enforced the entire year? (It should be understood that these regulations currently affect all construction in the area, access to the area, and other issues, all year long such that farmers cannot erect fences, roads/trails cannot be constructed thus denying entry to large areas, ponds cannot be constructed by farmers/ranchers, etc.) How does you idea you describe fit into this situation?

        Milhouse in reply to Cleetus. | August 25, 2019 at 8:27 am

        Yes, that is exactly what I’m saying. While it is flooded it can be used in interstate and international commerce, and is thus Congress’s business. While it is not, it isn’t.

          Edward in reply to Milhouse. | August 25, 2019 at 9:07 am

          In that case all building, etc. should be undertaken during the dry period when what is done on the surrounding land is none of Congress’ business.

          But you know that isn’t how the EPA bureaucracy sees it. IF it were actually just barely navigable in a canoe or kayak for just a few weeks each year, they would want year round enforcement of their rules. Calling a wet weather creek “navigable water” isn’t quite the idiocy of the “Glancing Goose” method of determining that puddles are covered waters, but a good candidate for runner-up.

          Milhouse in reply to Milhouse. | August 25, 2019 at 11:19 am

          Well, as the whole case demonstrates, the EPA bureaucracy doesn’t require water to be actually navigable by anything; their interpretation is that any water that affects a navigable waterway in any manner, however indirect, is included. Which is clearly wrong. CommoChief asked, well, what should be the definition. I gave what I think is common sense. “Navigable” means navigable now, not “used to be navigable”, or “might one day be navigable”.

          I can see an argument for saying that waterways that that every year flood and become navigable in the wet season should be covered even during the season when they’re not navigable — especially if during the wet season they are actually navigated in interstate or international commerce. But not for waterways that are not generally navigable, even if once in a blue moon they briefly become so.

          In the real world, that means 12 month control, because only a fool would think that a person will build something that the EPA can demolish at the first rainshower.

          Milhouse in reply to Milhouse. | August 25, 2019 at 7:06 pm

          Again, not relevant. Whether we like the outcome is not relevant; the only relevant question is what should be the definition of “navigable waters” for this purpose. So one must look at why the Act specifies navigable waters in the first place, and the answer is because Congress has the authority to regulate interstate and international commerce. If so it should be obvious that waters that are usable for that purpose are included and waters that aren’t aren’t.

          venril in reply to Milhouse. | August 26, 2019 at 2:48 pm

          Which of course raises the ugly and pervasive overreach regularly justified by the replacement of the Commerce clause with a Joker card.

Eventually SCOTUS will rule POTUS rule on WOTUS wrong if they can wake up from eating LOTUS.

This was the Obama admin strategy. Pass rules it knew it had no authority to implement and hope its court-packing strategy would save the changes. It worked for a while. We still aren’t back to where we were before Obama took office and it will take quite some time to get there.

As others have pointed out, it is not so outrageous that Obama, et al, did this… what is outrageous is , it took the judiciary 4 years to throw out such a obvious Federal overreach. Why did it take so long? The lefty Federal courts are enjoining the Trump administration in real time nationwide… and his stuff is actually legal or stipulated authority..

And on the other side, we have dubious regulation or outright craziness, in O-Care and WOTUS .. and the courts let them drag on and on like zombies. Insane. ( to me ).

    Tom Servo in reply to RobM. | August 25, 2019 at 9:01 am

    As others have pointed out, it is not so outrageous that Obama, et al, did this… what is outrageous is , it took the judiciary 4 years to throw out such a obvious Federal overreach. Why did it take so long?”

    Most people don’t have a feeling for the concept of “legal time” vs. “Real Time”. 4 years is actually a quick response, in Legal Time.

This is an example of how the Administrative Procedure Act can be useful. Conservatives complain when the APA keeps Trump from doing something they want done; now witness the APA being used in court to stop something Obama wanted done.

    puhiawa in reply to stevewhitemd. | August 24, 2019 at 11:25 pm

    It should have been stopped dead by the limits of the commerce clause. The US Constitution. Not this ridiculously obvious fault.
    The way the Federal judiciary works now is 100 district court judges can rule on a matter. 8 Appellate courts can confirm. And a crackpot District Court Judge in Hawaii or California, an Obama Judge, can overrule them all.
    The Judiciary is sick, and only Justice Thomas sees the disease and cure.

Why would anyone think ‘a clear statement from Congress’ would suffice? The regulation is Unconstitutional and a law would be as well. This country is entering very dangerous territory where Judges think they are legislators and agencies think they are god.

    CommoChief in reply to puhiawa. | August 25, 2019 at 1:02 am


    I didn’t see a reply option on your response to my post. So placing it here.

    Why and what is ‘nonsense’? Truly I don’t see what you mean.

    What is your objection to Congress providing a definitive of what ‘navigable’ and when a particular body of water needed to be ‘ navigable’? These definitions would be done by the legislative branch not a court or administrative agency which would be an improvement IMO. Don’t forget that states sometimes use federal definitions so one simple rule telling us what navigable entails would be nice to know vs a patchwork.

    Tom Servo in reply to puhiawa. | August 25, 2019 at 9:08 am

    I don’t disagree that the country is entering a dangerous time, and here is the most inconvenient truth – Judges today act as legislators because they are now the only legislature we’ve got. Congress has abdicated all of it’s power and is incapable of passing anything meaningful at all. That’s why the statement “Congress should define “navigable waters…” HA! What “Congress” are you thinking of? The Senate will license out control to China for campaign contributions, and the House will say “we don’t know what that word means so it must be RAYCISS!!!”

    In actual, cruel fact, the Judiciary is now the only Legislature we have left. If not, than how come only the Judiciary could do anything at all to stop this ridiculous WOTUS act?

      venril in reply to Tom Servo. | August 26, 2019 at 2:52 pm

      All the better reason to press the issue vigorously. Forcing the judiciary to stop acting in place of a do-nothing legislature would be a vast improvement over either of them doing pretty much anything.

The lawless over-reach of Democrats cause so much expense and time wasting and aggravation for ordinary citizens. Democrat totalitarianism is tyranny.

It took 4 years to reverse this cancerous overreach.
What a waste.

obama was the truly first totally liberal president we have ever had. The things he did with his “Pen” are so radical because he knew he would never get them through Congress. We can only imagine the damage hillary would have done if she had been elected. I truly believe that normal Americans saw this and voted for Trump. Not for the msm reasons of dislike for hillary on personality. What obama had done and the SCOTUS vacancy were the two main reasons that most of us voted for Trump. Trump is doing exactly what we all hoped he would do about obama’s phone and a pen! BTW I never capitalize excrement!

Winning! Undoing Obama’s “legacy” bit by bit.

Thank goodness POTUS continues to roll these wretched regulations back. Fair is fair. I was an “environmentalist” as a yute. When the Cuyahoga River was catching on fire, Love Canal was the rage, and the results of chemical burials and dumping on most WWII era military bases, there were plenty of reasons to support Nixon’s push for CWA and other environmental protective legislation.

But as we know (and the central mantra of all conservatives) “power corrupts,” and by constant screaming the environmentalists exploited good folks’ desire for clean resources into more and more power for an environmentalist priesthood — as corrupt as the Borgias. Any effort to temper their stridency was instantly labeled heresy. Their capstone, of course is Agenda 21 and 30, recently re-packaged as the “Green New Deal.” We know it has everything to do with self-appointed Platonic Guardians lording it over the unwashed, and little, very little, to do with environmental concerns.

Another wicked word the CWA zealots use is “contiguous.” That is a “toe bone is connected to the foot bone” argument, saying even intermittent streams are “navigable,” b/c when they do run, their water eventually leaks into a commercially navigable water. The EPA even tried to characterize Mohave Desert arroyos as contiguous, DESPITE the point they were most always dry and all the runoff they carried evaporated or disappeared into the Great Basin, not navigable waters!