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

From Legal Insurrection

Posted by Leslie Eastman Saturday, August 24, 2019 at 7:30pm

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

https://www.youtube.com/watch?v=eKFTSSKCzWA

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.”

Read the full story here.

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

    • Lose ?
      Its an administrative decision as the remedy is …”he remanded it back to the Environmental Protection Agency and the Army Corps of Engineers for further work.”
      Trump has had his setbacks in Federal court about some of his rules too..

      It doesnt make sense to only have navigable waters under EPA clean waters rules and the tributaries that arent navigable under a states different rules. Especially when the waters move from state to state or indeed are state boundaries.

      • Doesn’t make sense?

        Is this a country where the rule of law applies?

        The law references and applies to navigable waters. It does not matter if it makes
        “sense” to you, it is the LAW. Obama and his leftist enviro-wacko appointees don’t have the right to expand the reach of the federal government by fiat, and without even following the required procedures when adopting the new rule.

        The problem is years of appointment of HACK judges have created courts that let this crap go on for years without issuing a NATIONWIDE INJUNCTION when the government infringes on individual property rights, but lib judges immediately issue an injunction blocking anything Trump does within the law which actions are, in general, eventually upheld by the SCOTUS.

        The rule has been returned to the EPA to be written to conform to the LAW while following the proper process as required by law. I am sure there are plenty of deep state wacko bureaucrats ready to again write a regulation that exceeds the authority granted under the legislation. This is an example of why Trump was elected, to drain the swamp of these activist bottom dwellers.

        • Those lefty liberal Socialist Democrats have the same problem with “navigable waters” as stated in the Clean Water Act ………as they do with “the right to bear arms” as stated in the 2nd Amendment to the COTUS.

          Their typical dastardly devious dirty trick is to coin a brand new 21st Century definition for a commonly used word ……. and then “SELECTIVELY” apply that “new” definition to 18th, 19th and 20th Century verbiage, ……. specially legal verbiage (Laws, Statutes, etc.)

          • The case for extending federal control to Indiana swamps and Wyoming farm ponds (because they might be in some way be connected to navigable waterways, which could be used for interstate commerce) is exactly the same as the case for extending federal control to all roads and private driveways and garages and bicycle paths & sidewalks and hiking trails in America (because they are all connected & feed traffic to roads used for interstate commerce).

            Follow that so-called “logic” to its logical conclusion and you end up with abominations like Wickard v. Filburn, and limitless federal governmental authority. The Founders must be spinning in their graves.

            “In the first place it is to be remembered that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any. The subordinate governments, which can extend their care to all those other subjects which can be separately provided for, will retain their due authority and activity.”
            – Federalist No. 14 [Madison, in collaboration with Hamilton and Jay]

            “The true key for the construction of everything doubtful in a law is the intention of the law-makers. This is most safely gathered from the words, but may be sought also in extraneous circumstances provided they do not contradict the express words of the law.”
            – Thomas Jefferson, 1808

        • Drake, don’t be such a simpleton. You need to have the mental firepower to critically examine whether law makes sense in a connected physical system. Why should states be able to set lax environmental regulations for the numerous tributaries that flow into navigable waterways, just to have them load contaminants into the receiving environment? States have a long track record of ignoring the environment in favor if the royalties and donations they receive from industry.

      • Duker,

        Q: So if I piss on a spot of hard caliche-clay desert out here in the southern Arizona desert and casue a momentary river headed for the Colorado River watershed, does that momentarily become a “navigable water-way” subject to EPA regulation?

        A: In the Democrat’s World, yes. They want to regulate everything, including my pissing in a dry desert. Because you have to realize it’s NOT about the piss or any consequences for clean water; it’s purely about the “control” that they are after. I’d need a piss permit, with appropriate fees paid.

        • At least the Democrats have to apply to the people in order to get elected. EPA bureaucrats are there, come rain or shine.

          There won’t be any draining of the swamp once there are rules in place declaring the swamp to be a “navigable waterway”. I expect they are still working on that, with backdoor funding from the Sierra Club and Greenpeas.

        • My son does environmental mitigation, working to satisfy government and activist complaints on the behalf of the landowners, He tells this one story of a desert area being classified as a wetland because someone found a single plant “that usually grows in wet areas”.

      • Duker, it doesn’t matter what you think does or does not make sense, what matters is what the law, as written, says. If you don’t like the law as written you get congress to amend the law, you don’t ignore the law and do what you think is best. Obama tried to do the later, thankfully there are still some judges that follow the rule of law.

        • BINGO!
          The Feds stepped in because a misguided court ruled that whatever a bureaucrat decided was a “navigable waterway” fell Constitutionally under the Feds control because it might impact “interstate commerce” which, Constitutionally, the Feds do have a say in.
          A farm pond. A swamp. That low spot in my backyard. None of them have anything to do with “interstate commerce”.
          I’ve seen barges on the Ohio River. I’ve always enjoyed the view.
          I’ve never seen a barge in my backyard. I doubt I’d enjoy it if I did.

      • I agree.

        Most developers who fanatically urge deprivation of their property rights bought the land they want to develop with full knowledge that there are federally regulated wetlands and streams on their property. This is standard due diligence in commercial real estate transactions. The Obama rules did not much change existing regulations dating back to the 90s. The developers got their land nice and cheap. Now they want the people to treat them like they (the developers) are victims.

        I wish WUWT would stay out of politics and stick to climate science. It is very good as to the latter. If it wants to maintain integrity it has no business in my view championing the paving over of America.

        • More seriously, you say “I wish WUWT would stay out of politics and stick to climate science” since “climate science” *IS* political from the IPCC down, that’d a rather impossible wish.

    • Because scumbag Obama, and all his leftist comrades … refuse to pass LAWS … legally. Pass LAWS through CONGRESS … Democratically!!! Instead, they use the Deep State Bureaucracies to CRUSH the American people under the bootheel of their bureaucratic tyranny. And, of course, by Executive Order … most of which have been vacated by PDJT.

      It’s time to return Democracy to our Laws. Passed by a “gridlocked” (good) Congress. Let the checks and balances work as intended … not bypassed by some smarmy, sophomoric ‘Harvard’ Law graduate designing Deep State maneuvers in the dark.

      • Obama was not “poorly advised”.
        Obama was deceitful and fully complicit in EPA’s power grab; just as he was complicit with Richard Windsor’s fake email scheme.

        The EPA was full of NGO activists at that time, writing new regulations for the agency.

        The duplicitous power grab was planned, which is why the regulation was written so vaguely, except for the portion assigning EPA absolute control if they determined that signs of water passage existed.
        It did not matter whether water flowed through that land only during 500 years storms; the claimed fact that water collected or flowed was enough to give the EPA absolute power over all land whose water drained into that shallow gully.

        Then there were the legal methods EPA applied; that is, EPA had the power to decide if water ever flowed across that land. One of the administrative supporting precedents is cited above; “the Chevron Deference”. EPA simply had to declare that water could flow and that would give EPA absolute control.

      • This is the same Obama that said “I don’t need Congress, I have a pen and a phone.” He knew exactly what he was doing.

    • If by creepy followers you mean the Propaganda Press that is currently writing his “glorious Caesaresque” legacy as “corruption free” all the while covering up for his Orwellian activities including his use of the bureaucracy as an assault weapon against freedom loving citizens, then Scumbag works. After wielding the justice department and the FBI against the Trump Campaign as a favor to Clinton he is the one that requires a Special Prosecutor. It is time for the real enemies of the state to be exposed both Demoplican and Republicrats who have helped to divide this nation and set citizen against citizen with lies and deception for their own enrichment.

  1. This shows once again how fragile the system is and how any over reach administration that comes along can do it again with confidence that a national shrug from those empowering the power grab will accompany the power play. This explains how things work in Latin America and Africa when constitutions are “revamped” for convenience. We just do it with more lawyers and longer vendettas.

  2. Whew! Talk about dodging a government overreach bullet… for now.

    The judge sent it back for a rewrite, but without the Fed’s ability to overrule the States, there’s probably no point in rewriting the WOTUS Rule. Oh, and I’m glad the ‘navigable’ part in particular was brought up. That really shuts down the power grab.

    • The judge was reminding them of the fact that the EPA had to follow the law as Written by Congress and to go back and make it so. The Obama EPA was trying to rewrite laws. Congress writes laws, EPA writes Rules that are posted in the Federal Register for review of all concerned, that are supposed to comply with the Federal law.

      • My thought is that it will be a VERY LONG TIME before the re written rule sees the light of day. All comments must be resolved, etc, etc.

  3. Actually, it shows that the system works. The POTUS can push his agenda but the law rules. This from a Canadian, I hope it works as well here!

  4. … a Wyoming farmer being fined $37,500 a day for constructing a stock pond on his own property.

    Is that what I would call a dugout? Dugouts are one of the great lessons learned from the dirty thirties. I can not imagine how sane person, who is even marginally acquainted with dry land farming, thinking dugouts are bad. Am I missing something here?

    • what I would like to read is the REPARATION for all those who were ripped off and given hell BY the EPA and assorted mongrels enforcing those crappy regs on so many.
      Im forever amazed that rainwater collection for the garden let alone for drinking is banned and a crime on so many ussa states.

        • Five years ago when I was looking to build a house to retire to, I kept running into HOAs and Covenants that put onerous restrictions on what I could build initially and in the future. I had to buy a plot of land well outside the city limits in order to escape them. As long as I’m complying with all the prevailing laws, I don’t see why my neighbors should be able to tell me what I can and can’t do on my own property. I would never presume to do it to them. The world would be a better place if everybody just minded their own business and didn’t try to harm or cheat others.

    • The EPA has no particular business in that land use since it is handled very well at the Wyoming State level. In the high plains desert that is most of Wyoming, the state engineer manages the water rights for all of the state. This was the remedy to a very contentious and often violent depute over water access. A surprise for most of us that don’t live in these areas where getting rid of water is a larger problem, the state owns the rights to all water either on the surface (or coming down from the sky) and below surface. The access rights to that water are granted through prioritized permits through a complex allocation rules. Basically rights granted in the past have priority over more recent permits. If it gets dry, water rights for newer permits may be withdrawn. I’ve heard that the runoff from your roof come under this set of regulations. People have built houses and when they go to get a well permit they find that water access is denied and they basically have a house that can never be supplied with water except maybe they can have it trucked in. In any event the history of the Wyoming state engineer is interesting.

      https://www.wyohistory.org/encyclopedia/order-out-chaos-elwood-mead-and-wyomings-water-law

  5. So how many EPA staff who justified this policy still in place waiting patiently for an administration change in 2020 or 2024? Then they can foist it on us again.

    • These Deep State politically biased bureaucrats need to be IDENTIFIED, weeded-out, demoted, retired, or otherwise be replaced by unbiased, science-based decision-makers. Bureaucrats who will work to keep the REAL environment clean … like FIXING the damned poison water of Flint MI!! And stop following the political FANTASY of CAGW. A WASTE of their high-salaried, high-benefitted time … and my taxpayer dime.

      • Having worked my entire career for companies that did work for the military and government agencies I can tell you that there is no true accountability in the government. There are no consequences to you actions and you can’t be fired or demoted because of civil service rules and no true outside authority that can punish bad or incompetent behavior. Upper management has also learned that that they never give direct orders that can make them responsible for what’s done. It’s all done with innuendo with the implicit “I’ll punish you if you don’t do what I’m asking for”. The deep swamp is just a group of power hungry managers looking for more power and promotion.

      • Fixing the water in Flint is n business of the federal government. The state and locality can fund the the repairs. Nothing in the US constitution addresses such an issue.

        This is the problem with the current federal government, working way outside of the enumerated powers granted by the constitution.

        • Exactly, and while an executive branch with the right mindset can whittle away at the edges of the Swamp to good effect, it will take an Article V Convention of States to truly drag the federal government back within those enumerated bounds.

      • If they’re former EPA workers, the “quitting” is meaningless virtue signaling as quitting from a job that you don’t hold (because you are already a former worker) doesn’t really do anything. Now if you meant “1500 disgruntled EPA works have quit”, that would be something. a good start in my book. YMMV.

  6. The WOTUS power grab shows the danger of centralized authority.

    Ideologues need only take control of one agency to impose their tyranny on everyone. It’s especially dangerous when the agency is unelected and bureaucratic, and has the power of law and gun to impose its rules.

    The wisdom of distributed power is demonstrated again and again.

  7. Chipping away one regulation at a time. The over reach of the Obama administration can’t be trivialized. A sad part is the Republicans helped him do it. “We the people” need to pay more attention. $.5T to the UN “Climate Fund” on one of his last days in office should wake more people up but it didn’t.

  8. This court ruling of course won’t be appealed by the Trump DOJ/EPA/Corps of Engineers.

    But a Hillary Administration (in the alt-universe where she won the US Presidency) surely would have appealed it all the way to the Supreme Court, and she would’ve had +2 Liberal (Living Constitution, anything goes) justices to replace Scalia and Kennedy on the bench, giving her a 5-4 liberal majority there to allow anything the Democrats wanted — rule of law and Constitution be damned. And in this universe where she won, the US would be on the path to an oppressive government tyranny.
    Trump saved US from that Democratic Party-driven Dante’s 9 circles of Hell descent … for now.

    Again, this demonstrates how the Left losing a liberal majority on the US Supreme Court is so damaging to their lawless agenda. Losing the Supreme Court goes well beyond their climate scam dreams.
    And if things go south for RBG (radiation treated for a malignant tumor on her pancreas last month which is not “curative” in oncology-medicine circles) in the next 8 months, Trump will get a 3rd SCOTUS pick for McConnell’s US Senate Republican majority to confirm.

    Last weekend, Democratic strategist David Axelrod was quoted as saying about a Trump replacement for RBG, “It will tear this country apart.”
    https://www.dailywire.com/news/50994/david-axelrod-rbg-health-scare-empty-scotus-seat-paul-bois

    What Axelrod means to communicate is that the violent, anarchist Left (Antifa, et al) is prepared to incite mass violence across many US cities should RBG exit the Supreme Court in the next 12 months and Trump nominate a replacement. Which of course is more reason NOT to deal with the terrorists with anything but resolve of a recognition of them as terrorists.

    • “What Axelrod means to communicate is that the violent, anarchist Left (Antifa, et al) is prepared to incite mass violence across many US cities should RBG exit the Supreme Court in the next 12 months and Trump nominate a replacement.”

      The Democrats are the party of violence. The Democrats are the party of division. The Democrats should be voted out of office at the next opportunity.

      Trump should outlaw Antifa and should crack down hard on any public violence the Democrats instigate in the future.

      Bad behavior needs to be punished. Otherwise, the bad behavior will continue.

      Angry Democrats should keep in mind that 63 million Amerians voted for Trump and they don’t look at things the way you Democrats do. The Democrats are going to have a hard time pushing that many people around. An impossible task, I would say.

      • +100 to you and @Joel O’Bryan. Can’t be bothered to look up her name, but a female African-American Senator or Representative publicly congratulated Antifa for their violent assault on people waiting to see Milo Yiannopoulos at Berkeley. Said they deserved it. Hell, maybe the DNC is funding them. It’s like they really want a civil war.

        • Hell, maybe the DNC is funding them. It’s like they really want a civil war.

          Wouldn’t be the first time the Democratic party was behind domestic terrorists, So it would be no surprise to find them behind the black mask wearing thugs of Antifa. After all the white hood wearing thugs of the KKK were started by the Democrats in the 1860s, and the klan would target blacks *as well as* Republicans.

  9. Aaarrgh! “Wisconsin was a party to the suit but dropped out in April.”
    That miserable miscreant Gov. Tony Evers – WI dropped out of the suit, after prior Gov. Scott Walker had pursued it faithfully.

  10. It’s interesting too how obama’s EPA could charge a man in Montana for putting a pond on his own property according to his EPA’s arbitrary law(?), and then claim they are enforcing the law, but when illegal aliens cross into our country (need I say it, illegally), well that’s apparently OK…. Pond not OK, breaking another country’s sovereign law OK. In summary, give your own citizens pure hell, while apparently giving illegals carte blanche, even protecting them. When did US citizens become the bad guys of our gov’t. And they want to take our guns.

  11. The reason the law says “navigable waterways” is that the Constitutional authority for federal regulation of those waterways is:

    Section 8.
    The Congress shall have Power…
    To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

    The legal theory is that navigable waterways are used for commerce, so regulating them is authorized by the power to regulate interstate and international commerce.

    Note, however, that there is no Constitutional authority for the federal government to regulate intrastate commerce, or non-navigable wetlands, or farm ponds in Wyoming. The U.S. Constitution entrusts the States with those responsibilities, exclusively. The Obama WOTUS rule does not conform to the constitutional limits on federal authority, which restricts it to navigable waters of the United States which are usable for interstate commerce.

  12. This question of who “”Owns”” the water happened here in South Australia.

    Many years ago we were told that we should install a water tank to save
    water falling on the roof, to then use that to water the garden.

    Later the State owned water agency tried to charge this water in the tank as a part of the water used by each house.

    Australia is said to be the driest continent in the world, so why not make sure that none of its rivers lets water flow into the sea.

    But of course like Tasmania, we would get people from the “”Wild River “” group objecting, you cannot win.

    MJE VK5ELL

  13. The WOTUS rule was not a construct of the Obama Administration out of whole cloth. Jim Oberstar of Minnesota (D-8th) had continually introduced legislation amending the CWA to extend Federal jurisdiction to non-navigable waters. Despite opposition from his own farm organizations and American Farm Bureau Federation, he had made this effort his signature legislative effort throughout his tenure. Farm organizations and Private property advocates were able to bottle up his amendment in committee with little debate for many years. By the end of his tenure however, he was able to garner more and more support for this huge expansion of federal power both within Congress, but especially from environmental ngo’s. It was no surprise to us in agriculture, given the people that Obama appointed to the USEPA, that they would attempt to achieve through administrative regulation what they could not accomplish legislatively. These rulings are very helpful, as long as the Senate remains in the hands of people that believe in limited government. However, the watermelon enviros have this change among the top priorities if they would ever regain the power they had under the Obama administration.
    The fight for freedom and founding principles of our constitution never ends. And the extreme danger now is from within.
    Elections matter people! Forget about the trivial personalities of leaders, focus on the big picture of which candidates stand for the Rule of Law, Property Rights, and our Constitution, and which candidates don’t.

  14. The EPA and the courts have been abusing the definition of “waters of the United States” ever since the 1972 amendments to the Federal Water Pollution Control Act (the Clean Water Act) eliminated the requirement that federally regulated waters must be capable of being used by vessels in interstate commerce. Sad that it took the Obama EPA doubling down in 2015 and almost 50 years time for a court to finally bring some sense into the conversation.

  15. This may be another possible example of scientists trying to run things and losing their credibility. Four scientists and eight scientific societies have filed a Supreme Court Amici Curiae Brief about a groundwater case in Hawaii concerning –“QUESTION PRESENTED Whether the Clean Water Act requires a permit for the discharge of pollutants when the pollutants travel through groundwater from a point source to navigable waters. ” I was once a member of one and still get mail.

    https://cerf.memberclicks.net/assets/blog/Amici%20Curiae%20Brief%20for%20Aquatic%20Scientists%20and%20Scientific%20Societies%20July%202019.pdf

    Points noted. Figs. 1 and 2 are simplistic, Fig. 3 is for Tennessee. Footnote 5 “Like any tool, each approach is subject to limitations, which may include time constraints, lack of data, and uncertainty regarding future conditions. See, e.g., Mary P. Anderson et al., Applied Groundwater Modeling: Simulation of Flow and Advective Transport 11–13 (2d ed. 2015). In such cases, pollutants in a surface water may not be “fairly traceable” to a particular point source.”

  16. Obama’s “Waters of the United States” rule tried to regulate every body of water (navigable or not) as if it were a “wetland” that needed to be protected, from any pollution that might result in damage to any wildlife that might decide to inhabit it, even temporarily. This led to some absurd situations like EPA trying to regulate a holding pond that a farmer might have dug on his own land to give water to livestock (with no outlet to surrounding land), even though no wildlife inhabited the “wetland” before the farmer dug it.

    States do have the power to regulate pollution discharged into a stream which may be used by others as a water source downstream, and the Federal government can (according to the Constitution) regulate such waterways if they flow over state boundaries.

    But neither State nor Federal government should be able to regulate the use of an isolated pond entirely on private land, from which no water or pollution can flow into neighboring land (due to its being surrounded by higher ground). Otherwise, the government could claim that a puddle that formed after a rainstorm was a protected “wetland” if a frog or duck happened to stop by, and that the owner destroyed a “wetland” when the puddle dried up!

  17. Don’t forget the “navigable” waterways is also an operating term for the Army
    Corps of Engineers to claim jurisdiction over rivers, lakes, and streams.

    Here in Northeast Ohio, there was a quiet jurisdictional dispute among
    the Fed EPA, the Engineers, and the Ohio EPA concerning the upper part
    of the Cuyahoga River.

    Over the history of Ohio and it’s settlement in the late 1700s into the 1800s,
    this part of the river was only “navigable” by canoe and raft. In the 1840s
    we had the Pennsylvania/Ohio canal that ran from Beaver Creek Pa. to
    Akron… and joined the Ohio Canal in what is now Summit County. It
    by-passed the parts of the river that wouldn’t float a boat.

    The Corps tried to claim “navigability” for the entire length of the river. They
    “lost” to the Fed EPA. who “lost” to the Ohio EPA. The low dams built in the
    1830’s at Cuyahoga Falls and Kent for local water power have been pulled down
    thanks to the Ohio EPA and their green supporters.

    The river is now “navigable” for kayaks and canoes from Cleveland to just
    north of Kent. We’re still called Portage County…

  18. We like wetlands and rice paddies. Both really do a fine job of cranking out CH4.

    Why doesn’t the EPA slap a fine on coal deposits which all crank out methane?

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