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Rounds Questions Legality of Army Corps’ Implementation of WOTUS

Rounds: “We have heard multiple examples of the Army Corps implementing the WOTUS rule nearly to the point where the property that is subject to the permitting loses its value.”

WASHINGTON—U.S. Senator Mike Rounds (R-S.D.), a member of the Senate Environment and Public Works (EPW) Committee, today at an EPW Subcommittee hearing questioned the legality of reports that the Army Corps is implementing the Waters of the U.S. rule (WOTUS), despite a nationwide stay on the rule in October 2015. Specifically, Rounds questioned Damien Schiff, the Principal Attorney of the Pacific Legal Foundation, about the implementation methods of the Waters of the U.S. rule (WOTUS).

“When agricultural land is subject to burdensome and unreasonable permitting requirements based on incomplete information or the illegal implementation of a regulation, landowners lose the ability to cultivate and properly manage their land, which essentially prohibits farmers and ranchers from using the land that they rightfully own,” said Rounds at the hearing.

“Would you consider this illegal implementation of WOTUS a regulatory taking by the Army Corps of Engineers, and if so, what recourse do the property owners have to prevent the Army Corps from devaluing their property to the point that it becomes practically unsaleable?” asked Rounds.

Schiff replied, “I do believe that in many of these instances there would be a regulatory taking. The idea is that the Constitution says that the government cannot take your property for public use without just compensation, and the Supreme Court has made clear that includes cases of environmental or other regulation where you can no longer do anything with your property and have no value left.”

Full video of the exchange can be found here: