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Congress, Supreme Court One-Two Punch for WOTUS, Admin State

In the latest round of Administrative State ping-pong, Congress has taken the first step toward disapproving an Obama-Biden-era EPA rule that turns puddles into “navigable waters”—at least in nefarious government regulations.


The Biden administration recycled the repealed Waters of the United States, or WOTUS, rule. With a Republican majority in the U.S. House, a resolution of disapproval, H.J.Res. 27, has now passed that body, 227-198.


The Trump administration withdrew the Obama WOTUS rule and replaced it with a Navigable Waters Protection Rule. The Navigable Waters Protection Rule curbed the excesses of Obama-Biden’s overbroad WOTUS rule and set a more rational, balanced rule. The NWPR respected private property rights while preserving the statutory intent of the Clean Water Act.


The Environmental Protection Agency announced in 2021 its intent to revoke the Navigable Waters Protection Rule and again to inflate the definition of “waters of the United States.” Biden’s WOTUS rule promises to sweep more than 60 percent of the nation’s streams and millions of acres of wetlands into federal jurisdiction as “navigable waters” on paper.


Last year, the EPA moved to pull the NWPR and replace it with the Obama-Biden WOTUS retread.


Members of the U.S. Congress who are at least a little familiar with the U.S. Constitution, along with land owners across the country who get caught in the crossfire of the Administrative State’s regulatory ping-pong match, are sick and tired of the back and forth regulation-deregulation swings from one presidential administration to the next.


This situation renders impossible any semblance of certainty and predictability for property owners. It’s untenable for the many innocent property owners who suffer the painful, expensive consequences of such a ludicrous, dysfunctional state of the regulatory state.


Ah, there’s a twist. The U.S. Supreme Court recently ruled against the EPA’s overreach and its stretching a statute way beyond what its words say, in West Virginia v. EPA. And SCOTUS appears game to continue reining in the runaway Administrative State’s regulatory overreach.


Awaiting the high court’s decision are Michael and Chantell Sackett, property owners whom the EPA has wrapped in red tape since 2007, on WOTUS regulation-related grounds, blocking them from building a house right beside an existing house in a developed neighborhood. (CPR supported the Sacketts’ successful SCOTUS petition.)


Talk about poster children for victims of the abuses of power and bureaucratic theft of private property by the Administrative State run amok. That’s the Sacketts.


The very first day of the Supreme Court’s fall term this past October, SCOTUS heard arguments in Sackett v. EPA.


Across First Street, the resolutions expressing Congress’s disapproval of bureaucracy-empowering regulations operate under the Congressional Review Act. The CRA provides an expedited process for Congress to disapprove of a recent rule or regulation.


Of course, President Biden is expected to veto the CRA measure—but the point will have been made, with probable judicial action constraining EPA bureaucrats on this very piece of regulatory territory.


Conservatives for Property Rights numbers among the 100-plus organizations supporting Congress’s CRA disapproval. CPR observed: “This [latest Biden] rule would compound the regulatory vagueness and expand the EPA’s and the [Army Engineers] Corps’s discretion far beyond what is reasonable. It is tantamount to a wholesale taking of private property without just compensation.”


Next stop for the CRA is the U.S. Senate. There, Sen. Shelley Moore Capito leads the companion resolution, which all Republican senators have cosponsored. Stay tuned! Maybe not all of the 23 Senate Democrats standing for re-election are entirely empty-headed.

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