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Navigating “Waters” in Regulation

Don’t look now, but we’re about to see a step toward common sense by the Environmental Protection Agency and the Army Corps of Engineers.

Under the Trump administration, “navigable waters” will soon mean “navigable waters” — you know, a body of water substantial enough for a boat sized for grownups to operate.

The public comment period closes today on a proposed rule to undo some of the worst excesses of the Obama administration’s regulatory heavy-handedness. Under that intentionally overbroad regulation, private property where a puddle forms might fall claim by EPA or Corps bureaucrats as somehow coming within the Clean Water Act’s clutches.

In other words, WOTUS has enabled unjust regulatory takings of private property.

Conservatives for Property Rights has filed favorable comments on this rulemaking.

The “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the `Waters of the United States' Rule” as proposed will “increase CWA program predictability and consistency by increasing clarity as to the scope of ‘waters of the United States’ federally regulated under the Act. This proposed definition revision is also intended to clearly implement the overall objective of the CWA to restore and maintain the quality of the nation's waters while respecting State and tribal authority over their own land and water resources.”

The Small Business Administration Office of Advocacy says of harm WOTUS has done to property rights, “Because of the lack of clarity in the [WOTUS] definition, small businesses have endured major development project delays, have incurred fines for waters that were not understood to come under federal jurisdiction, and, in general, have incurred costs to hire outside experts and consultants to help ensure they do not incur federal penalties.”

Last year, the Republican Congress squandered an opportunity to change WOTUS in law. Both the House-passed Interior Appropriations and the Farm Bill contained language to fix WOTUS. CPR sought finishing the legislative job while they still had a majority in the House.

Reining in the Obama WOTUS rule should relieve harms and red tape inflicted on property owners. Doing so by regulation will help. Doing so by legislation would help more.

Still, the proposed WOTUS rule reforms represent a decided change in direction toward securing and respecting private property rights. And that sure isn’t nothing.

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