Waters of the United States: navigating the shoals

Jonathan Adler at Cato’s Regulation magazine:

During the 2016 presidential campaign, Donald Trump promised to “eliminate the unconstitutional Waters of the U.S. rule” and constrain federal regulation of private land use. According to then-candidate Trump, the Obama administration’s 2015 regulation defining “waters of the United States” under the Clean Water Act (CWA)—the so-called WOTUS rule—was “so extreme that it gives federal agencies control over creeks, small streams, and even puddles or mostly dry areas on private property.” While guaranteeing “crystal clear” water under his administration, Trump also pledged to lessen the federal regulatory burden on landowners.

Two years into the president’s term, the Environmental Protection Agency and the U.S. Army Corps of Engineers are trying to make good on Trump’s promise. In December 2018, the two agencies proposed a revised WOTUS definition that would significantly curtail federal regulatory jurisdiction under the CWA. If the effort is successful, it could clear the muddy waters of the federal government’s regulatory reach. The effort to rewrite WOTUS will also be a test of the Trump administration’s ability to navigate the shoals of the administrative process in pursuit of its deregulatory goals.

Earlier here. More from Adler (court’s ruling in May tossing Obama rule); Federalist Society blog post by Daren Bakst, podcast with Bakst, Deidre G. Duncan and Tony Francois, and panel discussion with Jeffrey Clark, Jon Devine, and Tony Francois.

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