In what has been a rough couple of months for the Obama administration on the regulatory front, the U.S. Court of Appeals for the Sixth Circuit has issued a temporary nationwide injunction halting the controversial new Waters of the United States rule (WOTUS) of the Clean Water Act. The U.S. District Court in North Dakota had already issued a preliminary injunction against the rule in late August, but the Obama administration claimed the injunction applied only to the 13 states bringing suit. The nationwide injunction is a significant setback for Obama and his Environmental Protection Agency (EPA). 

The WOTUS rule, which was to be jointly administered and enforced by the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers, was presented as a clarification of the federal government’s regulatory authority under the Clean Water Act by defining what exactly constitutes “the waters of the United States.” 

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In reality, the language of the EPA rule is so intentionally vague this “clarification” could grant Washington, DC jurisdiction over any body of water anywhere in the nation. WOTUS was meant to apply to any water or wetland deemed to have a “significant nexus” to any navigable waterway, with the significant nexus, as described by a Wall Street Journal editorial, so widely interpreted as to include “any creek, pond or prairie pothole” and “any land within a 100-year floodplain and 1,500 feet of the high water mark or, alternatively, within the 100-year floodplain and 4,000 feet of waters within their claimed jurisdiction.” Essentially, the WOTUS rule would put EPA in charge of every piece of land occasionally containing any amount of concentrated water, practically down to the puddle.

WOTUS would constitute a massive expansion of federal power and a usurpation of states’ authority, representing a major threat to property rights and private enterprise. Property owners, farmers, and business owners with any property fitting this spectacularly expansive definition of “waters” could face mounds of new, onerous restrictions, red tape, or costs before being allowed to alter their land in even the smallest way. 

Criticism of WOTUS has been broad and far-reaching. The U.S. Chamber of Commerce, National Association of Manufacturers, American Farm Bureau Federation, and Dairy Farmers of America have all raised concerns. H. Sterling Burnett, managing editor of The Heartland Institute’s Environment & Climate News, says the voluminous  number of people and organizations who have “criticized EPA’s plan as overreach in public statements or congressional and administrative testimony” includes “pesticide manufacturers, mining companies, home builders, governors, local governments, water utilities, flood control districts, the timber industry, railroads, real estate developers, golf course operators, food and beverage companies, more than 40 energy companies, and two dozen electric power companies.”  

Although the nationwide injunction is a victory for businesses, property owners, and the states, it is only a temporary victory. The injunction remains binding only during the litigation over the rule’s constitutionality. If the rule is upheld, enforcement would begin immediately.  

This rule raises some interesting constitutional questions, and the Sixth Circuit has stated of WOTUS, “the rulemaking process by which the distance limitations were adopted is facially suspect,” but concerned members of Congress should be wary of trusting the judicial branch to step in and solve their problems for them. Instead of waiting, wishing, and hoping, Congress should be proactive and put forward legislation to rein in EPA. 

The James Madison Institute recommends four ways Congress could take action to block WOTUS implementation: an appropriations bill to block or remove funding, a standalone bill targeting WOTUS directly, amending the Clean Water Act, or the use of a joint resolution of disapproval under the Congressional Review Act, which would automatically prevent WOTUS from taking effect and keep EPA from implementing similar rules.  

Any of these would be acceptable avenues for Congress to protect private property rights and the sovereign power of the states.

Benson (tbenson@heartland.org) is a policy analyst for The Heartland Institute.