President Trump has ordered the Environmental Protection Agency and the Army Corps of Engineers to reconsider the controversial Waters of the United States rule (WOTUS). In a recent op-ed, Pacific Legal Foundation's Jonathan Wood argues that while this is a good start, more can be done. And the Congressional Review Act can help.
While the WOTUS rule would open up more Americans to agency abuses, it is just the final escalation in a long running power grab by bureaucrats. When President Trump signed the executive order, he shared the story of a Wyoming farmer who was threatened with $16 million in fine for building a stock pond for his cattle.
In that case, WOTUS was not the culprit. Instead, it was a guidance memorandum that EPA released in 2008 interpreting the most recent Supreme Court case rejecting its excessive claims of authority under the Clean Water Act.
Mr. Wood explains:
The so-called Rapanos guidance—named after a Supreme Court case that Pacific Legal Foundation won in 2006—exploited every ambiguity in the Supreme Court’s opinions to reassert the broadest view of federal power the agency could. This guidance was the foundation for the WOTUS rule and, even if the rule is repealed, would remain in place.
The Rapanos guidance broadly asserts federal control over any area that federal bureaucrats deem to have a nexus with a downstream navigable water. Often, this nexus is extremely tenuous. Bureaucrats would claim that a drop of water falling on someone’s property would eventually end up in a navigable water hundreds of miles away and that was enough to give them control over the property. When Congress granted authority to regulate “navigable waters” in the Clean Water Act, it could hardly have meant to give unelected, unaccountable bureaucrats authority to regulate dry land hundreds of miles from the nearest navigable water.
Although the Rapanos guidance has been causing mischief for property owners for nearly a decade, it was never submitted to Congress. Therefore, it is illegal for government bureaucrats to enforce it and, if it is belatedly submitted to Congress, it would eligible for Congress to disapprove and permanently block under the CRA. And until it is properly submitted to Congress, it should not be followed by any agency official and all enforcement actions based on it should be dropped.
You can read the full op-ed at The Daily Caller.