PLF Petition To Define “Waters Of The United States”

Sep 27: Pacific Legal Foundation (PLF), who brought and argued the Rapanos v. United States case before the U.S. Supreme Court last term, announced that it has formally petitioned the Federal government to change the regulatory definition of “waters of the United States” to reflect Congressional intent and the United States Supreme Court’s interpretation in the recent Rapanos decision. PLF said the petition is part of a major new Clean Water Act litigation project known as “Beyond Rapanos: Charting a Course to Liberty.”

According to the rulemaking petition filed by PLF the immediate adoption of new regulations, consistent with the intent of Congress as interpreted by the Supreme Court in Rapanos, is vital to the public interest. PLF argues that based on the Court’s findings, the government’s current interpretation is unreasonable and invalid. Principal Attorney Reed Hopper, who argued Rapanos said, “For 30 years, the public has been subject to uncertain and inconsistent jurisdictional standards that have been the hallmark of Clean Water Act enforcement. It is time for action and time for a change.

PLF indicated that their Beyond Rapanos project will be a major focus of the foundation’s efforts for several years to come and will center on defending victims of Clean Water Act enforcement actions throughout the country. Hopper said, “PLF is actively pursuing litigation all over the United States that will, once and for all, return common sense and the rule of law to enforcement of the Clean Water Act. At every turn, PLF will be working to effect change and rein in government’s unjustified power over property owners who are being victimized by unreasonable enforcement of the Act.”

Last month, PLF announced the filing of its first “Beyond Rapanos” case – Fairbanks North Star Borough v. United States Army Corps of Engineers. According to PLF, this case is one of the first to test the Corps’ interpretation of the Clean Water Act following the Rapanos decision. In Fairbanks, PLF sued the Army Corps of Engineers over what they called arbitrary enforcement of the Clean Water Act on land that is frozen to a depth of 20 inches. In this case, PLF is representing an Alaskan Borough which they say is "simply attempting to build playgrounds and athletic fields on a two-acre parcel. The land has no hydrological connection to navigable waters of the United States yet the Army Corps of Engineers asserts that the land is suitable for regulation under the CWA because it includes areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support a prevalence of vegetation typically adapted for life in saturated soil conditions."

Aside from the PLF efforts, two Circuits of the U.S. Court of Appeals have recently provided interpretations of the confusing 4-4-1, U.S. Supreme Court decision in Rapanos -- the Seventh Circuit, USA v. Gerke Excavating, Inc. (September 22, 2006) [See WIMS 9/25/06]; and the Ninth Circuit, Northern California River Watch v. City of Healdsburg (August 10, 2006) [See WIMS 8/11/06].

Access a release from PLF with links to the petition and related information including a list of Rapanos-related cases (click here). Access the WIMS-eNewsUSA Blog post on the Seventh Circuit, USA v. Gerke Excavating, Inc., September 22, 2006 decision of the Seventh Circuit with links to that opinion and additional information (click here). Access the WIMS-eNewsUSA Blog post on the Northern California River Watch v. City of Healdsburg, August 10, 2006,decision of the Ninth Circuit with links to that opinion and additional information (click here). Access the complete June 16, 2006, Supreme Court Rapanos opinion and syllabus (click here). [*Water]