Monday, November 14, 2011 4:00 pm | By J. Michael Wahlen
Today, PRA released a Legislative Alert in support of the Barrasso-Heller Amendment. This Amendment seeks to stop the “Guidance” issued by the EPA to expand the Clean Water Act (CWA).
The new Guidance would significantly expand the type and amount of waterways the federal government could regulate. Under the new interpretation, the U.S. Army Corps of Engineers could regulate not just all navigable waterways, but interstate, intrastate and even non-navigable ones as well.
This jurisdiction clearly goes beyond the original intent of the CWA and greatly expands the power of the federal government. The Barrasso-Heller Amendment eliminates this Guidance by clearly defining and limiting the types of waterways the federal government can regulate. This Amendment ultimately prevents property rights from ceding away from private citizens to the EPA.
As the Alert notes:
[These powers] were limited in the past by two U.S. Supreme Court cases which clarified the scope of federal jurisdiction over wetlands and other "waters of the United States" under the Clean Water Act. The Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (2001) and Rapanos v. U.S. (2006) have significantly reduced the potential for abuse under the Clean Water Act, by limiting the previously broad definition of navigable water.
Unfortunately, the new Guidance seeks to subvert the court’s ruling, ceding power back to the federal government from the landowner. The Barrasso-Heller Amendment prevents this expansion of government power by clearly defining and limiting the waterways which the federal government can regulate.