Putting an end to the biggest power grab in the 49-year history of the Environmental Protection Agency (EPA), the Trump Administration Sept. 12 scrapped the Obama-era “Waters of the United States” (WOTUS) Rule.

Under the guise of “clarifying” two ambiguous Supreme Court rulings form the early 2000s, the Obama Administration in 2015 concocted an elaborate scheme that – had it been allowed to stay in place – would have subjected millions of acres of private land across the country to federal zoning. Two federal court decisions in the last three months – one in Texas, and the other in Georgia – found that the 2015 Obama plan to regulate wetlands went far beyond what the Clean Water Act (CWA) and the Administrative Procedures Act allow.

The confusion over what constitutes “waters of the United States” under the CWA has triggered endless litigation and bedeviled farmers, ranchers, developers, home builders, and others involved in natural-resources-related businesses for years. At its core, the term “waters of the United States” refers to those bodies of water over which EPA and the U.S. Corps of Engineers have regulatory jurisdiction under the CWA. The Obama WOTUS rule would have granted EPA and the Corps sweeping powers to regulate ditches, stock ponds, and other bodies of water the two agencies chose to include under their jurisdiction, including “wetlands” that are only wet during certain times of the year.

Under the 1972 CWA, federal jurisdiction was to extend to “navigable waters of the United States.” The Obama Rule effectively removed the word “navigable” and handed the feds power over ill-defined “waters of the United States.”

At the Mercy of Unaccountable Federal Bureaucrats

Had the Obama WOTUS rule not been repealed by the Trump Administration, landowners would have had to get permits from EPA and/or the Corps before making any significant modifications to their property. Getting such federal permits can take years and cost thousands of dollars. The Washington bureaucrat deciding whether a farmer could put a drainage ditch or stock pond on his farm would have been someone who had never set foot on the farmer’s property and who was accountable to absolutely no one.

Doing away with the Obama WOTUS rule is a two-step process. Step 1 repeals the Obama power grab and returns the county to the regulatory status quo prior to 2015. In step 2, the Trump Administration will create a new and clear definition of what qualifiers as “waters of the United States,” thereby ending the legal confusion, and potential for regulatory abuse, that has characterized wetlands regulation for decades. The new definition is expected in a few months.

The two recent federal court decisions in Texas and Georgia underscore how the Obama Administration had overreached in issuing its WOTUS rule. Together, they found that the 2015 Rule:

  • Did not implement the legal limits on the scope of the agencies’ authority under the Clean Water Act as intended by Congress and reflected in Supreme Court cases.
  • Failed to adequately recognize, preserve, and protect the primary responsibilities and the rights of states to manage their own land and water resources.
  • Approached the limits of the agencies’ constitutional and statutory authority absent a clear statement from Congress.
  • Suffered from certain procedural errors and a lack of adequate record support as it relates to the 2015 Rule’s distance-based limitations.

The Trump initiative represents a severe setback for the administrative regulatory state and a welcome victory for property rights.

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