What happened

The U.S. District Court for the District of North Dakota recently put the brakes on the Biden Administration’s attempt to implement its “waters of the U.S.” rule, handing landowners an important victory in preserving private property rights.

The new WOTUS rule seeks to expand the definition of “navigable waters” to include ponds, certain streams, ditches and other bodies of water under the Clean Water Act, as determined by the Environmental Protection Agency and the U.S. Army Corps of Engineers.

“The revised rule creates greater government overreach, produces additional red tape and leads to uncertainty for landowners and businesses,” said Nebraska Gov. Jim Pillen. “This will have a negative economic impact at a time when our state is already dealing with increased costs, supply chain issues and staffing shortages.”

What it means

The ruling halts the draconian rule from going into effect in 24 states, Georgia among them.

The Environmental Protection Agency has tried to revise the navigable waters rule for over 20 years seeking to re-define what constitutes the “Waters of the United States.” And they have been told twice in those 20 years that they can’t do it, but once again the agency looks for the back door to inflict regulatory rule over private property.

The EPA recently published a revised rule that seeks to redefine and expand the term “navigable waters.” As originally intended, the EPA could only regulate those waters that were interstate in nature, not intrastate. This WOTUSA rule would up-end that definition.

The 45-page ruling by the North Dakota court had serious reservations about the legality and impact of the proposed 2023 rule.

It categorized the 2023 Rule as “neither understandable nor ‘intelligible,’ and its boundaries are unlimited.” It also found that the Rule is riddled with “uncertainty”; the Court agreed that “there are serious constitutional concerns triggered by the implementation of the EPA’s new 2023 Rule.”

And as has been found in prior rulings against such an expansion envisioned by the EPA with this rule, the Court doubted that “Congress endorsed the current efforts to expand the limits of the Clean Water Act. … There is little that is intelligible about the 2023 Rule and the broad scope of its jurisdiction.”

What’s next

Off to the U.S. Supreme Court.

SCOTUS is currently considering a case that will decide whether or not wetlands should be considered as part of the navigable waters of the United States.

If not, then the EPA won’t be able to bootstrap overly broad federal regulations on flowing or navigable waters on property that merely has wetland properties to it.

That will determine if WOTUSA can be used by the government to find and use water as a way to transfer more property rights away from the private landowner and the family farmer and reinvest those rights in the regulators.

Wrap up

This is the clarion call for Congress to reclaim its rightful and exclusive power to end bureaucratic legislation.

And unless and until that is done, the Congress may well find itself regulated — and relegated – into irrelevancy.

Gary Wisenbaker is a Realtor with Century21 Realty in Valdosta (912) 713-2553 and can be reached at gwisenbaker@C21realtyadvisors.com