THE WALL STREET JOURNAL: Editorial: Trump’s Regulatory Dredging
Invoking Justice Kennedy’s muddled opinion, the Obama EPA claimed all land within a 100-year floodplain and 1,500 feet of the high-water mark or 4,000 feet of waters already under its jurisdiction—namely, rivers, tributaries and adjacent wetlands. Ditto “ephemeral” ponds, ditches and creeks that occasionally fill with storm runoff. The Hudson River is less murky than the Obama rule.
Courts gave a reprieve for homebuilders, farmers and other businesses by staying the rule in 28 states that sued. The EPA is now proposing a bright-line test that excludes from federal regulation land that contains water only after rainfall such as farm and roadside ditches. Groundwater recharge and wastewater recycling basins would also be exempt. Tributaries would be covered only if they connect to navigable waters. Lakes and ponds could be regulated only insofar as they are navigable, as in the Clean Water Act. Imagine: Adhering to the statute.
While states could continue to regulate waters within their borders, businesses would have an easier time navigating the federal regulatory landscape. If Democratic states sue the EPA, as is their wont, the Supreme Court might welcome the opportunity to clarify the limits on regulatory power.
