Protecting Your Backyard From Unlawful Regulation

Updated 1 year ago From a News Release by WV Attorney General Patrick Morrisey
As your Attorney General, I have worked hard to keep the regulatory power of the federal government at bay, particularly as it creeps into the everyday lives of West Virginians.

Our office successfully fought back and blocked the Obama administration rules at the U.S. Supreme Court that hampered coal mining and related activity. In a similar fashion, we continued to protect property owners when we staved off multiple attempts by the Obama administration and their allies to subject the groundwater in your backyard to federal regulation and permitting.
The latest front in this battle concerns a ruling by the 4th U.S. Circuit Court of Appeals, which if left intact, would give the federal government unprecedented control over small streams, farms and private property in West Virginia and other nearby states.   
Our office cannot stand for such overreach. That is why we are leading a 20-state coalition in urging the U.S. Supreme Court to review, and ultimately overturn, the 4th Circuit’s decision.
We firmly believe the 4th Circuit overreached by ruling the federal Clean Water Act applied to groundwater. This marks a significant expansion beyond Congress’ intent of regulating surface water such as rivers and lakes.
The Clean Water Act only applies if someone discharges a pollutant into “the waters of the United States,” or “WOTUS.”
While there is an ongoing legal debate about exactly what water falls into that category, courts have universally agreed that whatever WOTUS covers when discussing surface water such as rivers, lakes and wetlands, it does not extend to cover groundwater.
That doesn’t mean you have a license to dump whatever you want into groundwater — there are State regulations, and even other federal laws that protect against groundwater pollution — but the Clean Water Act very clearly does not apply.
Such expansion would potentially require every home septic system owner to apply for a federal permit. That could impact roughly 220,000 West Virginians, potentially costing homeowners hundreds of thousands of dollars and taking months or even years for consumers to be brought into compliance.
It also would be detrimental for job creators. Farms, oil and natural gas operations, wastewater treatment plants and other entities could face similar liability and costs, potentially killing countless jobs in the process.
Our office also remains actively involved in arguments to undo the Obama-era WOTUS rule, a regulation that, like the job-killing Power Plan, we stopped in its tracks.
That crucial victory blocks the federal government from using the Obama-era rule to take control over almost any body of water, such as isolated streams, dry creek beds, gravel pits, hundred-year floodplains and roadside ditches. That Obama-era rule tried to regulate your backyard ditch in a manner consistent with how the federal government regulates the Potomac, the Ohio and the Mississippi rivers.
It seems pretty obvious that “water” should not be defined in such a way that the federal government acts like a national zoning board.
There needs to be a sensible, predictable definition so that everyone knows when and if they will be subject to Clean Water Act jurisdiction.
I applaud the Trump administration and its recent commitment to seek a permanent replacement of the Obama-era rule with a more sensible and lawful approach to regulation.
Our office will always fight to keep our water and air clean, but we must also continue to protect farmers, homeowners and all West Virginians from federal overreach to help our state reach her full potential.
Patrick Morrisey is the Attorney General of West Virginia.
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