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POTUS WOTUS EPA ACE and Justice Scalia

POTUS WOTUS EPA ACE  and Justice Scalia

President Trump signed an executive order on February 28, 2017, to roll back the waters of the United States (WOTUS) rule that the U.S. Environmental Protection Agency (EPA) and the United States Army Corps of Engineers ACE (Corps) promulgated in 2016.

The Order is entitled, “Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.”

It instructs EPA and the ACE Corps to begin the process of a rule-making to withdraw the WOTUS rule, id. at § 2(a), and to take appropriate actions in the courts where the rule is in litigation. Id. § 2(c).

President Trump signed executive order on February 28, 2017 instructs EPA and the Corps to

“CONSIDER” ADOPTING THE SCALIA TEST FROM RAPANOS V. UNITED STATES, 547 U.S. 715 (2006).

ORDER § 3. SCALIA OPINED IN RAPANOS THAT, “THE PHRASE ‘THE WATERS OF THE UNITED STATES’ includes only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams[,] . . . oceans, rivers, [and] lakes.’. . . . The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall. . .” 547 U.S. at 739.

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Notice that Trump signed the EO back at the end of February 2017, and the EPA is JUST NOW sending the information out. It looks like they have deliberately STALLED.

These statements have to be in by June 19, 2017. Heads up!

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THE FEDERAL DEFINITION OF NAVIGABLE WATERS OF THE UNITED STATES

IS LOCATED AT 33 CFR 329.4

  • 329.4 General definition.

Navigable waters of the United States are those waters that are subject to the ebb (the outgoing phase; when the tide drains away from the shore) and flow (the incoming phase; when water rises again) of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce. A determination of  navigability, once made, applies laterally over the entire surface of the waterbody, and is not extinguished by later actions or events which impede or destroy navigable capacity.

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The federal definition 40 CFR 230 .3 pertains to the Clean Water Act and waters of the United States.

WOTUS BY OBAMA

The definition of the Waters of the United States (WOTUS) is very dangerous and overreaching. Under section (o), parts of the definition read as follows:
o) The term waters of the United States means: …

(ii) All interstate waters, including interstate wetlands;

(iv) All impoundments of waters otherwise identified as waters of the United States under this section;

(vi) All waters adjacent to a water identified in paragraphs (o)(1)(i) through (v) of this section, including  wetlands, ponds, lakes, oxbows, impoundments, and similar waters;

(vii) All waters in paragraphs (o)(1)(vii)(A) through (E) of this section where they are determined, on a case-specific basis, to have a  significant nexus to a water identified in paragraphs (o)(1)(i) through (iii) of this section. The waters identified in each of paragraphs (o)(1)(vii)(A) through (E) of this section are similarly situated and shall be combined, for purposes of a significant nexus analysis, in the watershed that drains to the nearest water identified in paragraphs (o)(1)(i) through (iii) of this section. Waters identified in this paragraph shall not be combined with waters identified in paragraph (o)(1)(vi) of this section when performing a significant nexus analysis. If waters identified in this paragraph are also an  adjacent water under paragraph (o)(1)(vi), they are an adjacent water and no case-specific significant nexus analysis is required.

(A)Prairie potholes. Prairie potholes are a complex of glacially formed wetlands, usually occurring in depressions that lack permanent natural outlets, located in the upper Midwest.

(viii) All waters located within the 100-year floodplain of a water identified in paragraphs (o)(1)(i) through (iii) of this section and all waters located within 4,000 feet of the high tideline or ordinary high water mark of a water identified in paragraphs (o)(1)(i) through (v) of this section where they are determined on a case-specific basis to have a significant nexus to a water identified in paragraphs (o)(1)(i) through (iii) of this section. For waters determined to have a  significant nexus, the entire water is a water of the United States if a portion is located within the 100-year floodplain of a water identified in paragraphs (o)(1)(i) through (iii) of this section or within 4,000 feet of the high tide line or ordinary high water mark. Waters identified in this paragraph shall not be combined with waters identified in paragraph (o)(1)(vi) of this section when performing a significant nexus analysis. If waters identified in this paragraph are also an adjacent water under paragraph (o)(1)(vi), they are an adjacent water and no case-specific  significant nexus analysis is required.

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WRITING FOR THE COURT IN THE 2014 CLEAN AIR ACT CASE, UTILITY AIR REGULATORY GROUP V. EPA, JUSTICE SCALIA DECLARED EPA’S INTERPRETATION UNREASONABLE BECAUSE IT WOULD BRING ABOUT AN ENORMOUS AND TRANSFORMATIVE EXPANSION IN EPA’S REGULATORY AUTHORITY WITHOUT CLEAR CONGRESSIONAL AUTHORIZATION.

JUSTICE SCALIA DECLARED “We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance,’” he wrote.
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OBAMA VETOES GOP ATTEMPT TO BLOCK WOTUS WATER RULE

By Timothy Cama – 01/19/16 07:22 PM EST

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EPA ‘Waters of U.S.’ Rule Is a Power Grab | National Review

www.nationalreview.com/article/431134/epa-waters-us-rule-power-grab

by Rupert Darwall February 11, 2016 4:00 AM. Obama’s power-mad agency claims jurisdiction over land and water use almost everywhere in … EPA, under the Clean Water Act, a statute Congress passed two years after its clean-air sibling. … partially checked, in what has become known as the Waters of the U.S. (WOTUS).

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President Trump signed an executive order on February 28, 2017, to roll back the waters of the United States (WOTUS) rule that the U.S. Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (Corps) promulgated in 2016. The Order is entitled, “Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.” It instructs EPA and the Corps to begin the process of a rule-making to withdraw the WOTUS rule, id. at § 2(a), and to take appropriate actions in the courts where the rule is in litigation. Id. § 2(c).

The Order raises a number of interesting issues. First, it instructs EPA and the Corps to “consider” adopting the Scalia test from Rapanos v. United States, 547 U.S. 715 (2006). Order § 3. Scalia opined in Rapanos that, “the phrase ‘the waters of the United States’ includes only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams[,] . . . oceans, rivers, [and] lakes.’. . . . The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall. . .” 547 U.S. at 739.

Because Rapanos was a split decision (4–1–4), there is no controlling opinion. The circuit courts, applying the Marks analysis, have concluded that Kennedy’s lone concurring opinion, which focused on the significant-nexus test, is the controlling standard from the case. (A couple of circuits have allowed Kennedy’s or Scalia’s opinion to be used to establish jurisdiction.) All of the circuit courts and almost all of the district courts have rejected the argument that Scalia’s test should be adopted as the sole jurisdictional test. The Supreme Court has denied certiorari numerous times since Rapanos on WOTUS issues, so we have no clarification from the Court on how to interpret the decision.

IT IS CLEAR WHY THE ADMINISTRATION HAS CHOSEN SCALIA’S TEST—IT IS MORE RESTRICTIVE OF JURISDICTION.

 THAN THE KENNEDY TEST, WHICH EPA AND THE CORPS ADOPTED IN THE WOTUS RULE.

UNDER THE SCALIA TEST, MOST HEADWATER SYSTEMS—ESPECIALLY IN THE ARID WEST—WOULD NOT BE SUBJECT TO  THE CLEAN WATER ACT (CWA) BECAUSE MOST HEADWATER SYSTEMS ARE EPHEMERAL OR INTERMITTENT AND ARE THEREFORE NOT “RELATIVELY PERMANENT WATERS.” HEADWATER SYSTEMS COMPRISE A LARGE PART OF THE NATION’S TRIBUTARY SYSTEM. IN PLACES LIKE ARIZONA EVEN THE MAIN CHANNELS ARE DRY MOST OF THE YEAR AND, THEREFORE, MAY NOT MEET THE SCALIA TEST FOR JURISDICTION.

 

THE SCALIA TEST WOULD LIKELY ALSO REMOVE MANY OF THE NATIONS’ WETLANDS FROM . EXPANSION IN EPA’S REGULATORY AUTHORITY WITHOUT CLEAR CONGRESSIONAL AUTHORIZATION.

 

AS JUSTICE SCALIA SAID “WE EXPECT CONGRESS TO SPEAK CLEARLY IF IT WISHES TO ASSIGN TO AN AGENCY DECISIONS OF VAST ‘ECONOMIC AND POLITICAL SIGNIFICANCE,’”

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President Trump Issues Executive Order Directing EPA to Review the WOTUS Rule

Thursday, March 2, 2017

On February 28, 2017, President Trump issued an Executive Order directing the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (ACE) to review the federal Clean Water Act (CWA) definition of “Waters of the United States”(WOTUS) Rule (the Rule) (80 Fed. Reg. 37054, June 29, 2015). Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule, Executive Order (Feb. 28, 2017) (EO). The EO directs EPA and ACE to review the WOTUS Rule for consistency with the policies set forth in the EO which specifies that “It is in the national interest to ensure that the Nation’s navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.” The EO also directs EPA and ACE to “publish for notice and comment a proposed rule rescinding or revising the [WOTUS] rule, as appropriate and consistent with law.”

Pursuant to the EO, EPA and ACE submitted for publication in the Federal Register, a notification of intention to review and rescind or revise the Rule. Notice of Intention to Review and Rescind or Revise the Clean Water Rule, Environmental Protection Agency and Dept. of Defense, Feb. 28, 2017. The notification will be published in the Federal Register in the coming days.

THE EO ALSO DIRECTS EPA AND ACE TO CONSIDER INTERPRETING THE TERM “NAVIGABLE WATERS,”IN A MANNER CONSISTENT WITH THE OPINION OF JUSTICE SCALIA IN RAPANOS V. UNITED STATES, 547 U.S. 715 (2006). The Rapanos opinion set out two separate standards for CWA jurisdiction. See Rapanos at 715‑718. Justice Scalia, writing for a plurality, determined that the statute should only apply when there is a “continuous surface connection”between “relatively permanent”waters. Id. at 743. Justice Kennedy, on the other hand, determined that jurisdiction should be based on whether a water or wetland possesses “a significant nexus to waters that are or were navigable in fact or that could reasonably be so made.” Id. at 759. Neither standard was supported by a majority, so neither standard has become binding precedent. See Id. at 715-718. Regulators, however, have generally followed Justice Kennedy’s standard,

AND THUS, A SWITCH TO JUSTICE SCALIA’S STANDARD WOULD REPRESENT A SIGNIFICANT CHANGE IN INTERPRETATION OF THE JURISDICTIONAL EXTENT OF THE CWA. SEE 80 FED. REG. 37054, 37056, 37060-37061 [WOTUS RULE].

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