Challenging Expansion of Waters of the United States Regulation

The National Association of Manufacturers’ (NAM) Manufacturers’ Center for Legal Action (MCLA) is suing the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers to challenge a new rule that expands jurisdiction over “Waters of the United States.” The EPA’s jurisdiction is limited to “navigable waters,” meaning waters of the United States including the territorial seas, but the EPA has attempted to expand jurisdiction over a staggering range of dry land and water features: large and small; permanent, intermittent or ephemeral; flowing or stagnant; natural or manmade; and interstate or intrastate. The rule exceeds constitutional authority and violates protected individual rights.

The rule will require permits for any unauthorized “discharges” somewhere that qualifies as a water of the United States. The definitions are complex and vague and often require case-by-case determinations by the agencies. Manufacturers that own property that might constitute covered U.S. waters will have to try to determine whether any activities they want to conduct could be subject to the rule, as criminal penalties for negligent violations are up to $25,000 per day and up to a year in prison per violation. The EPA may also impose civil penalties of up to $37,500 per discharge, per day, per offense. These punitive provisions discourage the reasonable and productive use of improvements to land and water features.

This rule has been challenged in various federal courts, and the NAM is involved in cases in the Southern District of Texas, the Eleventh Circuit and the Sixth Circuit. Most of the appeals have been consolidated into the Sixth Circuit, which issued a nationwide stay pending resolution of the legal issues. Three members of the Sixth Circuit then ruled in a 1-1-1 opinion that the appeals courts are the proper forum to hear these cases, but that extremely splintered opinion left great doubt as to the correct jurisdiction. We subsequently filed an en banc petition asking all members of the Sixth Circuit to review that ruling because en banc review is the quickest way to resolve the jurisdictional question. We hope the court accepts our petition and resolves this jurisdictional issue once and for all so that manufacturers have certainty and can keep working to strengthen our economy.

Maintaining reasonable regulation of all U.S. waters is vital to controlling costs and supporting the competitiveness of manufacturers in America. As announced by NAM Senior Vice President and General Counsel Linda Kelly, “Protecting our nation’s waters will always be a priority for manufacturers, but the EPA is again violating the powers given to it by Congress. . . . Manufacturers are increasingly handicapped by, and cannot endure, further regulatory uncertainty, permitting delays and rising expenses due to poorly crafted, jurisdiction-expanding regulations.”

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Leland Frost

Associate General Counsel at National Association of Manufacturers
Leland Frost is the Associate General Counsel at the National Association of Manufacturers (NAM). As part of the Manufacturers' Center for Legal Action, Mr. Frost works to strengthen the NAM's ability to promote manufacturing policy objectives through litigation. Mr. Frost's background includes international, environmental and corporate law experience and work on a wide range of policy and regulatory issues.
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