Federal Power Grab: Obama Administration Expands Federal Jurisdiction of Waters of the United States
Federal Power Grab: Obama Administration Expands Federal Jurisdiction of Waters of the United States
On May 27th, 2015, the Obama Administration expanded federal jurisdiction of waterways and drinking water supplies when it issued the Final Rule under the Clean Water Act. The Final Rule is widely seen as growing federal regulation by expanding the definition of “Waters of the U.S.” through the Environmental Protection Agency and Army Corps of Engineers. Most legal experts view the Final Rule as a drastic and unnecessary expansion the U.S. Army Corps of Engineers (Corps) and the EPA’s jurisdiction over waters that hadn’t previously been considered Waters of the U.S. Now the federal government will assert jurisdiction, and permitting authority, over these previously state-regulated waters and the lands on which they sit. The Final Rule defines “waters of the United States” so broadly that the federal government would have power over almost all of the nation’s waters, and therefore much of the nation’s land, including small and/or remote “tributaries”, “neighboring water bodies”, and even isolated waters (not connected to federal waters) that the Supreme Court has already determined are beyond CWA coverage.
Given recent Supreme Court rulings, it is unclear how the Final Rule comports with the United States Constitution, or even the limits of the Clean Water Act itself. Obviously, there is significant concern from private landowners, industrial project proponents, farmers, and developers, as the new rule will almost certainly restrict all of those uses, and will add significant costs in the permitting process and inject even more uncertainty into this area of the law.
A copy of the new definition of Waters of the United States can be found HERE.
The EPA’s news release can be found HERE.
Contact Braiden Chadwick for information about federal jurisdiction or the Clean Water Act.