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COLUMN: Trump Administration Right to Reverse Federal Overreach

February 13, 2018
Weekly Column and Op-Ed

The right to an individual’s life, liberty, and private property underpins any free society. It is a well-established principle enshrined in the Constitution’s 5th Amendment that under a limited government, no individual can be deprived of private property without just compensation. Back door methods of federal regulation, without titles or deeds ever changing hands, effectively result in the seizure or “taking” of private lands and violate of the spirit of law protecting private property.

President Obama’s 2015 Clean Water Rule, also called “waters of the U.S.” (WOTUS), represents a major case of the federal government redefining existing regulations to expand its own jurisdiction over private lands. WOTUS sought to “clarify” the definition of “navigable waterways” overseen by the Environmental Protection Agency and the U.S. Army Corps of Engineers by stretching it to include very small and seasonal waters never intended to be regulated by the Clean Water Act of 1972.

Instead of clarity, WOTUS created more ambiguity and heightened concerns of federal overreach. Farmers, ranchers, and agriculture producers feared that even drainage ditches would be included in the updated regulation, subjecting more farmlands across the nation to expensive federal rules. WOTUS would have expanded federal jurisdiction to such a degree that I believe it would have created the threat of “regulatory taking” of private property.

I supported the Trump administration’s recent announcement to delay the implementation of WOTUS for two years as federal agencies go back to the drawing board on defining navigable waterways to give private property owners clarity and peace of mind. In defining the scope of the Clean Water Act, the Trump administration has been guided by the legal opinion of the late Supreme Court Justice Antonin Scalia, who sought a restricted definition of navigable waterways. Justice Scalia argued that the Clean Water Rule should be applied more narrowly to “relatively permanent” waters and wetlands with a “continuous surface connection” to large rivers and streams.

The response of Washington State’s Attorney General, Bob Ferguson, to sue the Trump administration to retain President Obama’s WOTUS rule, flies in the face of the needs of our rural communities. Some regulations are commonsense, but WOTUS crossed the line into overreach. States and affected industries should give input on federal rules, but they should take into account the impact on farmers, ranchers, and rural homeowners.

The rights of all Americans – including those of us who live in rural communities – should be front and center when the federal government comes up with rules that have enormous implications for private property. I applaud the Trump administration for listening.