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A Senate Report on the Expansion of Jurisdiction Claimed by the Army Corps of Engineers and the U.S. Environmental Protection Agency under the Clean Water Act

United States Senate Committee on Environment and Public Works


September 20, 2016


Executive Summary

Case studies presented to the Senate Environment and Public Works Committee demonstrate that the U.S. Environmental Protection Agency’s (EPA) and the U.S. Army Corps of Engineers’ (Corps) new regulation defining “waters of the United States” (WOTUS), promulgated on June 29, 2015, will codify many of the most extreme overreaches of federal authority asserted by these agencies.

Although the new regulation is currently stayed, pending the outcome of litigation challenging the rule, these case studies demonstrate that assurances given by EPA and the Corps regarding the scope of the WOTUS rule and its exemptions to the positions taken by these agencies in jurisdictional determinations and in litigation are factually false.

The following conclusions can be drawn from these case studies:

• EPA and the Corps have and will continue to advance very broad claims of jurisdiction based on discretionary authority to define their own jurisdiction.

• The WOTUS rule would codify the agencies’ broadest theories of jurisdiction, which Justice Kennedy recently called “ominous.”

• Landowners will not be able to rely on current statutory exemptions or the new regulatory exemptions because the agencies have narrowed the exemptions in practice and simply regulate under another name. For example, if activity takes place on land that is wet:

  • plowing to shallow depths is not exempt when the Corps calls the soil between furrows “mini mountain ranges,” “uplands,” and “dry land;”
  • discing is regulated even though it is a type of plowing;
  • changing from one agricultural commodity constitutes a new use that eliminates the exemption; and,
  • If Congress does not act, the newly won ability to challenge Corps jurisdictional determinations and claim exemptions will be moot because the WOTUS rule establishes jurisdiction by rule that will extend to all the activities described in the case studies.

Click here for Full Senate Report on WOTUS/EPA Overreach, Sept. 20, 2016


Private Flight-Sharing At Risk: FAA Oversteps, SLF and Allies Argue to Supreme Court, July 29, 2016

WASHINGTON, DC/ATLANTA, GA, July 29, 2016:  Southeastern Legal Foundation (SLF) today filed an amicus brief with the U.S. Supreme Court urging it to reverse the Federal Aviation Administration’s (FAA) backward interpretation of its own rule which allows pilots to post pre-planned flights on old-fashioned bulletin boards but not virtual ones.  SLF is joined by the NFIB Small Business Center, the Buckeye Institute, the Beacon Center of Tennessee, and professor and pilot Thomas P. Gross.

Flying a private airplane is expensive.  For decades, the Federal Aviation Administration has permitted pilots to defray those operating expenses for pre-planned flights under its Expense-Sharing Rule.  In other words, if a pilot is flying from Atlanta to Charleston and wishes to share the operating expenses (fuel, oil, rental fees etc.) with others, he would post his information about his pre-planned flight on a physical bulletin board at his local airport.  And, others wanting to fly with him could take note and do so.   

With the advent of the Internet and now ubiquitous use of apps, traditional bulletin boards are nearly obsolete.  Companies like Flytenow have stepped in and created websites to make it easier for pilots to communicate with potential cost-sharing passengers.   The practice is abundant in Europe and in fact next month will be legalized in all European Union member states.

For reasons that remain unexplained, the FAA has deemed the online practice illegal and the U.S. Court of Appeals for the D.C. Circuit upheld that finding by deferring to the agency.   Flytenow, and similar companies in the U.S. have been forced to shut down their websites.

SLF argues that the FAA’s order is arbitrary, antiquated, and inconsistent with its longstanding Expense-Sharing Rule for private flights.

Click here for Supreme Court amicus brief, Flytenow, July 29, 2016


Nashville "Affordable Housing" Forced Set-Asides: Beacon Center of Tennessee and SLF Warn Mayor of Constitutional Problems, July 28, 2016

NASHVILLE, TN/ATLANTA, GA, July 28, 2016:  The Beacon Center of Tennessee and Southeastern Legal Foundation (SLF) today raise constitutional concerns about a proposed "affordable housing" mandatory set-aside currently being considered by the Metro Nashville City Council. 

In a letter sent today to the Mayor and city legal counsel, The Beacon Center and SLF explain that the proposed "affordable housing" ordinance that passed its first reading in the Council is not only illegal under state law, but is also unconstitutional.

The law requires that a property owner set aside a certain percentage of his or her inventory to sell at below the market value.

This comes after the city of Franklin recently indicated to the Beacon Center that it will repeal its affordable housing mandate. According to the Franklin City Attorney, city officials are currently drafting an ordinance to delete the law from the books. 

Beacon Director of Litigation Braden Boucek explained, "Affordable housing mandates like the one proposed by Nashville force private individuals to bear the cost burden, rather than taxpayers generally, to address the housing question. We applaud the city of Franklin for taking action after Beacon pointed out the legal issues with affordable housing mandates, and we hope the Nashville government will take notice. If this is a problem that needs to be addressed, then governments should address it, not force private parties to bear the whole burden." 

Boucek went on to note, "This particular housing mandate is unconstitutional and antithetical to the basic idea of fairness. This law is anything but affordable for most of the people involved. It simply forces tenants to pay more to cover the additional costs." 

Kimberly Hermann, Southeastern Legal Foundation senior counsel, explained, "This proposed ordinance is inconsistent with our principles of economic freedom and limited government. Forcing developers to sell the homes they build at a loss poses very serious legal and constitutional problems. Likewise, ordering homeowners who want to make improvements to their property to pay a fee into a city fund raises additional legal questions about fees and taxes."  More to follow on this important issue, as a number of cities across the U.S. are considering similar measures.

Click here for The Beacon Center/SLF Letter sent to Nashville government, July 28, 2016


Federal Government ‘Eminent Domain’ – No Trial By Jury – SLF, NFIB, and CATO Institute File Amicus in Sixth Circuit, July 15, 2016

ATLANTA, GA/CINCINATTI, OH, July 15, 2016:  Southeastern Legal Foundation joined the National Federal of Independent Business and the Cato Institute on an amicus brief supporting property owners’ right to a trial by jury when the government tries to take their property through the power of eminent domain.

In Michigan, the federal government used eminent domain to take property from a group of landowners.  Recognizing that property is the foundation for the other civil rights that we enjoy and that the federal government’s actions likely resulted in an unconstitutional takings, the landowners filed suit in a federal court and asked the court to, at a minimum, find they are due just compensation. 

The suit also challenged a provision of the Tucker Act that directs suits against the federal government over $10,000 to be brought in the Court of Federal Claims (a legislative tribunal rather than an Article III court) as violating the Seventh Amendment.  Thus, the landowners were challenging the denial of their constitutional right to a trial by jury. 

The district court sided with the government, shielding the government from constitutional checks and balances that protect individual property rights.  Under the district court decision, the federal government can take your property and will never have to answer to a jury.  

As argued in the amicus brief, the district court’s opinion conflicts not only with the Constitution, but also with Supreme Court precedent.  Less than 20 years ago, the Supreme Court held that because parties asserting takings claims seek compensation, those claims would have been heard by a court of laws (Article III court) at the time the Seventh Amendment was ratified.   The Supreme Court has never barred a party from a trial by jury simply because the federal government seeks to exempt itself from such scrutiny, and the Sixth Circuit Court of Appeals has no reason to do so here.

Click here for SLF/NFIB/CATO Institute Amicus Brief, July 15, 2016


Obama EPA Water Grab is Private Property Control on Steroids: SLF Files Briefs in Key Federal Courts, July 15, 2016

ATLANTA, GA, July 15, 2016:        This past week, Southeastern Legal Foundation filed a critical amicus brief in a case related to its challenge of EPA and the Army Corps of Engineers’ interpretation of the Clean Water Act.  By redefining “Waters of the United States,” the Agencies granted themselves almost limitless power and jurisdiction.  Taking issue with the Executive Branch’s power grab and the serious constitutional violations that result, SLF turned to the courts and challenged the WOTUS rule. 

Before challenges to the constitutionality of the WOTUS rule can be heard however, the courts must determine which courts should hear those challenges – federal district courts or the appellate courts.  The Clean Water Act directs that certain categories of EPA actions can only be challenged directly in a federal appellate court, but all others can be brought in district court.  Recognizing that some courts have interpreted the former categories broadly, SLF filed actions at both the district and appellate courts. 

SLF’s appellate challenge was consolidated with all the other appellate challenges and transferred to the Sixth Circuit, which ruled in a fractured 1-1-1 opinion that appellate courts had jurisdiction to hear the challenges.  The district courts that have ruled on the jurisdictional issue are split on the issue.  The Southern District of Georgia and the Northern District of Oklahoma both agreed with the Sixth Circuit, finding they did not have jurisdiction – the plaintiffs in both actions appealed. 

It is SLF’s position that the text of the Clean Water Act mandates that challenges to the WOTUS rule must be heard in district courts.  To ignore Congress’s clear mandate violates constitutional separation of powers between the three branches of government.

This past week was a busy one with respect to both the appeal in the Eleventh and Tenth Circuits.  In the Eleventh Circuit, where SLF filed an amicus brief (SLF 11th Circuit Brief Link) supporting the coalition of State plaintiffs, the court heard oral argument.  And, in the Tenth Circuit, SLF, Pacific Legal Foundation and the Cato Institute filed an amicus brief supporting the coalition of industry plaintiffs (SLF 10th Circuit Brief Link).  We anxiously await a ruling by the Eleventh Circuit and scheduling of oral argument in the Tenth.


EPA Political Takeover: SLF Files Formal Public Comment against 'Environmental Justice' Action Agenda, June 27, 2016

WASHINGTON, DC/ATLANTA, GA, June 27, 2016:  Southeastern Legal Foundation (SLF) today filed a Formal Public Comment in the increasingly controversial expansion plans of the so-called “environmental justice” efforts by 17 federal agencies.  In the most recent version, the U.S Environmental Protection Agency (EPA) has proposed its “EJ 2020 Action Agenda,” which drew SLF legal analysis because the Agenda “is another attempt by the Executive Branch to bring about enormous and transformative expansion of its regulatory authority with Congressional authorization,” according to Kim Hermann, SLF Senior Counsel.   

The Action Agenda is by all accounts the most aggressive use of political authority to govern everything from the way new regulations are arbitrarily implemented, to public education and the spending of taxpayer dollars to support groups that attack regulated entities, to the twisted misuse of civil rights law to “help” some groups, while remaining silent on other Americans.  The end result is a system of governing that gives a select few the power to modify rules and punish perceived offenders without due process or equal protection under the law.

Read more about the shocking Agenda – and why SLF has engaged in the effort to stop the political takeover of the regulatory agencies.

Click here for SLF’s Formal Comment filed in EPA’s “Draft EJ 2020 Action Agenda,” June 27, 2016


WASHINGTON STATE THINKS IT CAN TAKE YOUR PROPERTY: Ignores precedent, appeal to U.S. Supreme Court, June 10, 2016

ATLANTA/WASHINGTON, DC (June 10, 2016):  The Constitution is the supreme law of the land - but did you know that whether the government can take your property now depends on what state you live in?

Today, Southeastern Legal Foundation (SLF), joined by the National Federation of Independent Business Small Business Legal Center, filed an amicus brief with the U.S. Supreme Court challenging the arbitrary use of government power to seize private land without just compensation. 

In Common Sense Alliance v. County of San Jose, a group of shoreline property owners challenged a city ordinance requiring them to give up part of their land to serve as water quality buffers.  The Washington court refused to apply the Supreme Court’s cases, instead opting for the improper test.

The Fifth Amendment to the United States Constitution requires just compensation when the government takes private property.  This is because a growing number of state and federal courts are allowing governments to demand property for public use without just compensation simply because they did so through legislation.

The U.S. Supreme Court has held many times that the government may only require a permit applicant to dedicate land to a public use when that dedication is necessary to mitigate a harm that the proposed project would cause.   In other words there must be an “essential nexus” between the demand and some harm the project would cause and the demand must be “roughly proportional” to the harm. 

For more than 20 years, a growing number of lower courts have refused to apply the Supreme Court’s cases when the demand is imposed by legislation rather than through administrative action.  In other words, if a city conditions a single permit on requiring that property owner to give the city an easement for a bike path, the lower court applies the essential nexus and rough proportionality test.  But, if the city imposes the requirement through a city-wide ordinance, that same lower court only requires the city to show that the ordinance advances some legitimate government objective.  This provides local and state governments with a roadmap for evading the Constitution - an unconstitutional trend that SLF has been fighting in court for 40 years in some of the most important precedent-setting cases.

Click here for SLF/NFIB Supreme Court amicus brief, June 10, 2016


Obama Politics Trump Rule of Law: "Environmental Justice," Complete with Political Commissars, June 7, 2016

ATLANTA/WASHINGTON, DC (June 7, 2016):  The shadowy "Office of Environmental Justice" born of Executive Order and unaccountable to Congress looms over federal regulators at the U.S. Environmental Protection Agency and 14 other federal regulatory agencies - mirroring the Soviet-style political commissars who oversaw political purity in the military and throughout Soviet life - and it's anathema to Constitutional checks and balances and separation of powers - see SLF's article in Daily Signal, June 7, 2016

Click here for Daily Signal article by SLF, June 7, 2016


U.S. Dept. of Interior Joins Obama Administration Push for "Environmental Justice", SLF Files Formal Comments, May 17, 2016

WASHINGTON, DC/ATLANTA, GA, May 17, 2016:  Southeastern Legal Foundation (SLF) today filed a formal public comment in the increasingly controversial expansion plans of the so-called “environmental justice” efforts by 15 federal agencies.  In the most recent version, the Department of Interior’s 2016-2020 Draft Environmental Justice Strategic Plan drew SLF legal analysis because the Plan is “outside the bounds of existing legal authority, and raises serious constitutional concerns,” according to Kim Hermann, SLF Senior Counsel.   

First, the DOI’s proposal allows it to take any action it sees fit under the guise of “environmental justice” without any requirement that it establish any actual effect, let alone any actual disproportionately high and adverse effect, on a particular population.  Second, by focusing on environmental “effects” on particular communities, the proposed plan contradicts federal law which requires that the agency focus on actual treatment of particular communities.  Further it makes the same conduct legal in one community, but illegal in another solely based on the racial makeup of those communities.  Third, the DOI’s proposed use of social outreach tools raises serious concerns about anti-lobbying violations.  And finally, because the proposed plan protects some racial and ethnic groups and not others, it runs afoul of the Equal Protection Clause.

Click here for SLF's Formal Comment filed in Dept. of Interior "Environmental Justice" Plan, May 17, 2016


Government Says Owners Can't Use Property: SLF Files Supreme Court Brief, April 18, 2016

WASHINGTON, DC/ATLANTA, GA, April 18, 2016:  Can't sell or use your property?  Let's see what the Supreme Court has to say about it . . . SLF, joined by The Beacon Center, files amicus brief in the U.S. Supreme Court in support of the constitutional property rights.

The Murr family purchased a lakefront residential lot in 1960 and built a recreational cabin on it.  Several years later they purchased the lot next door as an investment.  The Murr children now want to sell the investment lot and use the money to renovate the cabin, so that future generations of Murrs can enjoy summers at the lake.   Happens a thousand times a day across the America, right?

Unfortunately, a 1975 county ordinance stands in their way.  After seeking and being denied a variance, the Murrs filed suit in federal court seeking compensation for the taking of their land.  The Wisconsin courts declined to find a taking simply because the Murrs lots were contiguous and shared the same owner.  In other words, if one lot was owned by 2 of the Murr children and the other lot was owned by the other 2 Murr children, it would have found a taking.  Or if the lots were not directly next door to one another, it would have found a taking.

SLF and The Beacon Center, argues that the lower court’s aggregation of two contiguous lots that have otherwise been treated separately is neither fair nor just because it deprives the property owners of all economically viable use of one of those lots.  In its brief, they advocate for the Supreme Court to devise a test for evaluating future attempts to aggregate property such as the multi-factor test applied by several lower courts.  Such a test supports the Murrs’ argument that Takings Clause jurisprudence supports a presumption that where a single parcel is alleged to have been taken, the parcel as a whole is that single parcel, nothing more and nothing less.

Click here for Supreme Court brief, April 18, 2016