Our backyard plastic kiddie pools and Slip 'N Slides are safe, for now, and we can continue to enjoy them unencumbered by bizarrely broad interpretations of the federal government's regulatory powers.
For the time being, thanks to a stay sought by West Virginia Attorney General Patrick Morrisey, et al. and issued by the U.S. Court of Appeals for the Sixth Circuit in Cincinnati, the Environmental Protection Agency and the U.S. Army Corps of Engineers will not be able to designate the most minute collections of moisture or barely discernible flows of fluid as “navigable waters,” subject to their capricious jurisdiction.
Pending the outcome of a lawsuit challenging the legality of their efforts, the court's decision blocks these two rogue agencies from enforcing a new rule that extends their authority to virtually all “bodies of water” in the United States – that purposely vague term being defined by them, of course, as they see fit.
The Sixth Circuit concluded that “the rule-making process ... is facially suspect” and that Morrisey and his fellow petitioners, representing 31 states and state agencies, had demonstrated “a substantial possibility of success on the merits of their claims.”
“We have said from the beginning that this new rule does not pass legal muster, and had it been allowed to remain in effect, homeowners, farmers, and a host of other entities across our state would have found themselves subject to a costly regime of new, complicated federal regulations,” Morrisey commented on the court's favorable ruling.
The court’s granting of the stay reaffirms the states’ belief that they have a strong case on the merits and that the courts ultimately will strike down the regulation, Morrisey said.
“We look forward to continuing to challenge this rule’s legality in court and are confident we will prevail.”
If not for Morrisey and his colleagues, the EPA and the Corps might already be telling us what we can and can't do in our own backyards.
