Americans For Prosperity Foundation Files Comment on The Administration’s Efforts to Update WOTUS Definition

Today, Americans for Prosperity Foundation filed a comment on the EPA’s and Army Corps of Engineers’ proposal to update regulations defining “waters of the United States”—which set forth the agencies’ understanding of their jurisdiction under the Clean Water Act (CWA). The rule attempts to better respect constitutional and statutory limits on federal power and protect due process and private property rights. AFP Foundation also believes updating the agencies’ WOTUS definition is a key piece of much-needed permitting reform, which is an important part of the Administration’s efforts to cut needless red tape and unleash American prosperity.

In the past, the EPA and Army Corps have claimed staggeringly broad power under the CWA to regulate innocuous activities (such as moving dirt without a permit) on private property that ordinary people would view as land (such as farmland miles from any river). On top of this, they have failed to provide the public with fair notice of required or prohibited conduct, thereby hanging the sword of Damocles over the heads of landowners. This has forced property owners to either go through expensive, time-consuming, and often arbitrary permitting processes or risk draconian civil and even criminal penalties, leading to a host of unjust outcomes highlighted by the Sacketts’ decade-plus odyssey. In addition to trampling property rights and due process, the agencies’ misguided approach under past administrations has also undermined federalism, which primarily tasks States—not the federal government—with regulating land and water use. The Supreme Court has repeatedly rebuked the agencies for their overreach, most recently in Sackett. And the proposed WOTUS update is a laudable step toward course correction.

As AFP Foundation’s comment explains, the agencies’ proposal “provide[s] greater certainty and predictability for stakeholders and better protect[s] due process and property rights than its predecessor” and “is a meaningful step toward simplifying compliance, reducing regulatory burdens, and providing property owners with fairer notice of whether they are subject to federal jurisdiction under the CWA.” AFP Foundation’s comment also offers general recommendations for further improving the agencies’ proposal, “urg[ing] the Agencies to craft a definition of WOTUS that adopts the CWA’s single best meaning, fixed at the time of enactment, restores States’ primacy in regulating water and land use, and gives ordinary people clarity on the statute’s reach.”

Read AFP Foundation’s full comment.