A highly controversial rule from the Obama administration may finally be on its way out.
On Tuesday, the Environmental Protection Agency announced that it is going to put an end to the Obama administration’s federal power grab known as the “Waters of the United States” (WOTUS) rule.
Specifically, the EPA and Army Corps of Engineers are proposing to rescind the rule and, for the interim until a new rule is developed, recodify the regulations prior to the WOTUS rule.
The Trump administration should be commended for taking this critical action. The EPA and Army Corps of Engineers, through the Clean Water Act, were seeking to regulate almost every water imaginable.
For example, under the rule, federal agencies could have regulated certain man-made ditches and even dry land that may hold some water only a few days of the year after major rains.
The rule was so broad and subjective, property owners would have had a very difficult time even knowing what was subject to regulation. For that matter, the level of subjectivity was so great that even government officials enforcing the rule wouldn’t have been able to agree on whether specific waters could be regulated.
By trying to regulate almost every water, the EPA and Army Corps of Engineers would have been forcing property owners to secure far more permits, including for normal activities such as farming.
The EPA and Army Corps now appear to recognize that protecting the environment doesn’t have to come at the expense of property rights and the rule of law. Critics will inevitably use scare tactics to say that getting rid of the WOTUS rule will harm the environment. The opposite is the case.
Getting rid of the rule now allows both the EPA and Army Corps of Engineers to develop a new rule that is both clear and objective.
This will help property owners and improve compliance—and it will help the EPA and the Army Corps by providing them clarity and direction in their enforcement of the law. It will also, if properly drafted, allow states to play the primary role that was envisioned under the Clean Water Act, which explicitly recognized “the primary responsibilities and rights of states to prevent, reduce, and eliminate pollution.”
This is likely to provide greater environmental protection, since states are in a far better position to identify and address the unique environmental needs of their waters than the federal government.
The EPA and Army Corps of Engineers’ new rule will hopefully properly define “waters of the United States.” For now, though, rescinding the WOTUS rule is the necessary start to that process.