Thursday saw a major win for the rule of law, property rights, and the environment: The Trump administration announced that it had finalized its repeal of President Barack Obama’s infamous 2015 Clean Water Rule. For decades, the Environmental Protection Agency and the U.S. Army Corps of Engineers have struggled to define the Clean Water Act’s term “waters of the United States” in a manner that can pass judicial scrutiny. That definition is extremely important, because it clarifies what waters the agencies can regulate under the statute. Instead of learning from past mistakes, the Obama administration decided it would take the federal overreach to a new level while ignoring the plain language of the Clean Water Act. There’s a reason why there was such diverse and widespread opposition to this Obama rule: It’s a rule that could have made it very difficult for Americans to engage in even ordinary activities, such as farming or building a home. The Obama rule was so extreme it would have regulated waters that couldn’t even be seen by the naked eye.The American Farm Bureau Federation explained:
…distant regulators using “desktop tools” can conclusively establish the presence of a “tributary” on private lands, even where the human eye can’t see water or any physical channel or evidence of water flow.
That’s right—invisible tributaries!
The agencies even claim “tributaries” exist where remote sensing and other desktop tools indicate a prior existence of bed, banks, and [ordinary high-water marks], where these features are no longer present on the landscape today.
The rule would have made it possible to regulate “waters” that were, in effect, dry land, such as a depression in land that holds water a few days a year after heavy precipitation. Then there’s the “we will know a regulated water when we see it” aspect of the rule. If waters didn’t fall under specific categories as listed in the rule, then the Obama rule created a backup plan to help ensure the agencies could still have the ability to regulate additional waters. The rule made it possible for the agencies to regulate some waters on a case-by-case basis if they decided that the water had a “significant nexus” to certain regulated waters. A property owner couldn’t have known what this would cover, because such determinations would have been at the subjective whim of agency officials.
That’s particularly problematic because the Clean Water Act has both civil and criminal penalties.
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