President Trump signed an executive order that requires federal agencies to reconsider the much-maligned (and deservedly so) Waters of the United States rule, or WOTUS rule. Although reconsideration of this power-grabbing rule is urgently needed, and thanks to the executive order will now happen, the WOTUS rule is just the tip of the iceberg for bureaucratic overreach under the Clean Water Act.
In explaining his decision, the President specifically referenced the nightmare that EPA put a Wyoming property owner through for allegedly violating the Clean Water Act. Andy Johnson built a small, environmentally beneficial pond on his private property to provide a safe, reliable water source for his family’s horses. The pond created wetlands, habitat for fish and wildlife, and cleans the water that passes through it. But this didn’t stop EPA from threatening him with fines of up to $37,500 per day if he did not rip out the pond.
You can imagine the stress Johnson, a father of four, experienced over the next two years as the potential fines grew to over $20 million. Thankfully, that story had a happy ending. Pacific Legal Foundation challenged this abusive threat on his behalf and the federal bureaucrats quickly backed down, agreeing to let him keep the pond and pay no fine.
President Trump was exactly right when he said of Johnson’s situation “[t]hese abuses were, and are, why such incredible opposition to this rule from the hundreds of organizations took place in all 50 states. It’s a horrible, horrible rule.”
But the unfortunate truth is that, although WOTUS would have put more people in Johnson’s shoes, the threats federal bureaucrats made against his family preceded the rule. The true culprit, in that case, was a guidance memorandum that EPA released in 2008 interpreting the most recent Supreme Court case rejecting its excessive claims of authority under the Clean Water Act.
The so-called Rapanos guidance—named after a Supreme Court case that Pacific Legal Foundation won in 2006—exploited every ambiguity in the Supreme Court’s opinions to reassert the broadest view of federal power the agency could. This guidance was the foundation for the WOTUS rule and, even if the rule is repealed, would remain in place.
The Rapanos guidance broadly asserts federal control over any area that federal bureaucrats deem to have a nexus with a downstream navigable water. Often, this nexus is extremely tenuous. Bureaucrats would claim that a drop of water falling on someone’s property would eventually end up in a navigable water hundreds of miles away and that was enough to give them control over the property. When Congress granted authority to regulate “navigable waters” in the Clean Water Act, it could hardly have meant to give unelected, unaccountable bureaucrats authority to regulate dry land hundreds of miles from the nearest navigable water.
Thanks to a new project on which Pacific Legal Foundation has partnered with the Heritage Foundation, Competitive Enterprise Institute, Club for Growth, and Buckeye Institute, we now know that the Rapanos guidance is unquestionably illegal for another reason. That project, Red Tape Rollback, promotes the Congressional Review Act (CRA) as a tool for Congress to check agency overreach.
According to this 1996 statute, no agency can enforce any rule—broadly defined to include guidance documents and other informal rules—until it submits the rule to Congress. After a rule is submitted, Congress has 60-legislative days to use streamlined procedures to disapprove the rule and, if the disapproval resolution is signed by the President, the agency is permanently forbidden from implementing the rule or adopting a substantially similar one.
Although the Rapanos guidance has been causing mischief for property owners for nearly a decade, it was never submitted to Congress. Therefore, it is illegal for government bureaucrats to enforce it and, if it is belatedly submitted to Congress, it would eligible for Congress to disapprove and permanently block under the CRA. And until it is properly submitted to Congress, it should not be followed by any agency official and all enforcement actions based on it should be dropped.
President Trump’s executive order implicitly invites the agencies he now oversees to reconsider the Rapanos guidance. The order requires agencies to consider interpreting their Clean Water Act power consistent with the late Justice Scalia’s opinion in Rapanos. In light of the guidance’s legal vulnerabilities and the abuses it has created, that reconsideration is urgently needed.
Jonathan Wood is an attorney at Pacific Legal Foundation and represented Andy Johnson in his successful challenge against EPA.