Republicans on the Senate Environment and Public Works Committee today released a 38-page report accusing U.S. EPA and the Army Corps of Engineers of advancing “very broad claims of jurisdiction” in Clean Water Act disputes. The report also warned that a recent Supreme Court win for landowners in a case about who can challenge certain decisions about water permits in court could become “moot” if Congress does not act to withdraw the Clean Water Rule.
The Obama administration’s rule, also known as Waters of the United States, defines which waterways and wetlands receive automatic protections under the Clean Water Act. In October, the 6th U.S. Circuit Court of Appeals put the rule on hold nationwide while litigation plays out . Republican members on the EPW Committee and foes of the rule have previously accused EPA and the corps of flouting the court’s order by asserting broad jurisdiction over the nation’s waterways.
The report argues that the agencies are taking a narrow view of exemptions for farming, highlighting several case studies of jurisdictional battles taking place across the country.
“The reach of federal authority claimed by EPA and the Corps is, in the words of Justice Kennedy, ‘ominous,'” the majority’s report says. “That ominous authority would be codified in the WOTUS rule. As a result, if that rule goes into effect, the hard-won right to challenge Corps jurisdictional determinations will become meaningless.”
Two new and fifty revised Nationwide Permits have been submitted by the US Army Corps of Engineers under Section 404 of the Clean Water Act or Section 10 of the Rivers and Harbors Act. The National Association of REALTORS® stated that “The two new permits authorize impacts related to the removal of low-head dams and construction and maintenance of living shorelines for shore erosion control. The permit revisions affect a variety of activities, including residential, commercial, and industrial development; flood control; storm water management; mining; and agriculture and aquaculture”. Read more.
The Supreme Court’s ruling in United States Army Corps of Engineers v. Hawkes Co., Inc., set a precedent that landowners may challenge the Corps’ jurisdictional determination specifying that a piece of property contains a “water of the United States.” Read more.
Farmers, some whose families have owned and managed their property for generations, are now facing difficulties managing their own land. The government’s ability to claim a property falls under Waters of the US means the owner may be required to get a federal permit before they can do common tasks like plowing their own field. The looming U.S. Supreme Court decision on U.S. Army Corps of Engineers v. Hawkes Co. will have a big impact on the land owners’ rights regarding WOTUS. Read more.
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