Senate To Vote On Protecting Americans From Biden’s Burdensome And Intrusive WOTUS Rule

In 2021, President Biden’s EPA Launched ‘Another Amphibious Assault On Private Land’ By Revising The Trump Administration’s Rollback Of The Onerous Obama-Era Waters Of The United States Rule

THE WALL STREET JOURNAL EDITORIAL BOARD: “[T]he Biden Environmental Protection Agency has announced plans to redo the Trump Administration’s Waters of the U.S. (Wotus) rule, which will make it harder to build infrastructure. The EPA this week announced plans to revise the Trump Wotus rule ‘to better protect our nation’s vital water resources that support public health, environmental protection, agricultural activity, and economic growth.’ Translation: The EPA is preparing a private land grab that will limit farming, fracking, home building and economic activity.” (Editorial, “An Anti-Development Water Rule,” The Wall Street Journal, 6/11/2021)

• “Recall how the Obama-era Wotus rule expanded federal jurisdiction over ‘waters of the U.S.’ under the 1972 Clean Water Act, which authorized the feds to regulate ‘navigable waterways’ like the Hudson River. The Obama EPA claimed jurisdiction over any waterways with a ‘significant nexus’ to ‘waters of the U.S.’ This included 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, as well as ‘ephemeral’ ponds, ditches and creeks that occasionally filled with storm runoff. The rule was intended to give the feds a veto over fossil-fuel development on private land. But it also meant that farmers would have to get permits to fill ditches. Road and highway construction projects would need to undergo federal review if their storm runoff could affect waterways a mile or so away.” (Editorial, “An Anti-Development Water Rule,” The Wall Street Journal, 6/11/2021)

• “The Trump EPA sensibly revised the rule to exclude unnavigable bodies of waters, including those that fill with water after a rainfall. Now the Biden EPA complains the Trump regulatory rollback constrained its regulatory power too much, particularly in arid states like New Mexico and Arizona, and eliminated federal permitting requirements for 333 projects. Ergo, the agency plans to launch another amphibious assault on private land.” (Editorial, “An Anti-Development Water Rule,” The Wall Street Journal, 6/11/2021)

Knowing The Supreme Court Is Examining The Scope Of The Government’s Power To Regulate ‘Waters Of The United States,’ The Biden Administration Is Pursuing A Fait Accompli, Attempting To Lock In ‘A Broad Definition’ Before The Court Rules

“The Biden administration is working to complete a clean water regulation before a Supreme Court ruling … With the Supreme Court expected to rule [in 2023] in a major case that could reduce the government’s authority to regulate wetlands, experts called the Biden administration’s move strategic. Getting a rule on the books now gives the E.P.A. a greater chance of locking in, at least for a while, a broad definition of which waterways qualify for federal protection under the Clean Water Act. ‘If the Supreme Court goes first, then the agency can’t finalize a rule that goes beyond it,’ said Kevin S. Minoli, a partner at Alston & Bird who served as an E.P.A. counsel in the Clinton, Bush, Obama and Trump administrations. By issuing a rule first, he said, the government has ‘more room to interpret’ the court decision when it comes.” (“Ahead of Major Court Case, E.P.A. Revises Clean-Water Protections,” The New York Times, 12/30/2022)

Earlier This Month, A Bipartisan Majority Of The House Voted To Overturn The Biden Administration’s WOTUS Regulation

The House voted 227-198 to pass H.J.Res. 27, a resolution of disapproval of the Biden administration WOTUS regulation. (H.J.Res. 27, Roll Call Vote #142: Passed 227-198: R 218-1; D 9-197, 3/09/2023)

REP. SAM GRAVES (R-MO), House Transportation & Infrastructure Committee Chairman: “As American families and businesses continue suffering under the economic crises caused by the disastrous Biden policies of the last two years, this Administration has inexplicably decided to move the country back toward the overreaching, costly, and burdensome WOTUS regulations of the past. Congress has the authority and responsibility to review onerous rules like this one handed down from the Executive Branch, and I’m proud that our Committee voted to preserve regulatory clarity and prevent such overzealous, unnecessary, and broadly defined federal power.” (U.S. House of Representatives Committee on Transportation & Infrastructure, Press Release, 2/28/2023)

State Officials, Industry Associations, Small Businesses, Infrastructure Trade Groups, And Farmers From Across The Country Have All Written To Congress Expressing Their Opposition To And Frustration With The Biden Administration’s Sweeping And Burdensome WOTUS Rule

State Officials: ‘It Appears That The EPA Is Seeking To Regulate Private Ponds, Ditches, And Other Small Water Features,’ ‘A Statement Of Significant Federal Overreach’

25 GOVERNORS: “We write in opposition to your rule regarding the Clean Water Act (CWA) and the revised definition of ‘Waters of the United States’ (WOTUS)…. The substance of the rule hinders State governments as we seek to give clarity and consistency to businesses, farms, and individuals regarding the regulatory framework for water. The broad definitions used in the 514-page document only add to the confusing and complicated history of WOTUS. In fact, it appears that the EPA is seeking to regulate private ponds, ditches, and other small water features.” (25 Governors, Letter to President Biden, 1/30/2023)

• Letter signed by: Govs. Brad Little (R-ID), Kay Ivey (R-AL), Mike Dunleavy (R-AK), Sarah Sanders (R-AR), Ron DeSantis (R-FL), Brian Kemp (R-GA), Eric Holcomb (R-IN), Kim Reynolds (R-IA), Tate Reeves (R-MS), Mike Parson (R-MO), Greg Gianforte (R-MT), Jim Pillen (R-NE), Joe Lombardo (R-NV), Chris Sununu (R-NH), Doug Burgum (R-ND), Mike DeWine (R-OH), Kevin Stitt (R-OK), Henry McMaster (R-SC), Kristi Noem (R-SD), Bill Lee (R-TN), Greg Abbott (R-TX), Spencer Cox (R-UT), Glenn Youngkin (R-VA), Jim Justice (R-WV), Mark Gordon (R-WY)

NATIONAL ASSOCIATION OF STATE DEPARTMENTS OF AGRICULTURE (NASDA) CEO TED McKINNEY: “The EPA’s latest rule on defining ‘waters of the United States’ is a statement of significant federal overreach that ignores long-held states’ authority to regulate intrastate water quality and with it, the Clean Water Act’s statutory mandate for cooperative federalism. NASDA appreciates efforts by Chairman Sam Graves and Subcommittee Chair David Rouzer, as well as their Senate counterparts, for their work in leading joint resolutions of disapproval.” (U.S. Senate Environment & Public Works Committee Ranking Member, Press Release, 2/08/2023)

American Industry And Small Business Groups: ‘The New WOTUS Rule Will Hinder Economic Growth And Development And Make It More Expensive To Invest In U.S. Infrastructure And Businesses,’ ‘This Overreaching Final Rule Increases Compliance Burdens And Uncertainty For Small Businesses’

43 TRADE ASSOCIATIONS WITH MEMBERS IMPACTED BY WOTUS: “As organizations representing a broad range of sectors from agriculture, energy, transportation infrastructure, construction and real estate, manufacturing, mining, recreation, chemical production, state departments of agriculture, and many other job creators, we urge support for the Congressional Review Act resolutions of disapproval of the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) 2023 revised Waters of the United States (WOTUS) regulation. Every sector of the U.S. economy – from small businesses and farmers, to manufacturers and homebuilders – depends on a clear, predictable, and transparent WOTUS rule so they can protect the environment, operate with certainty, and create jobs in their communities. Continual revisions, remands, and reintroductions of WOTUS definitions only sow confusion and ultimately dissuade future investment. … Unfortunately, the new WOTUS rule will hinder economic growth and development and make it more expensive to invest in U.S. infrastructure and businesses. This rule lacks definitions for key terms, uses vague and conflicting examples, and doubles down on an expanded and subjective ‘significant nexus’ test. It complicates an already complex process without corresponding environmental benefits beyond what the current regulations already provide.” (43 Trade Associations, Letter to Sens. Carper and Capito, 2/27/2023)

• “Small businesses and landowners will be forced to spend tens of thousands of dollars to hire consultants and lawyers simply to determine whether there is federally jurisdictional water on their property and if they need a federal permit. Delays created by regulatory uncertainty, plus increased permitting and mitigation costs, will make it more difficult and expensive to meet our nation’s ambitious infrastructure goals, grow food, produce energy, and provide clean drinking water. … The undersigned organizations appreciate your attention to this issue and urge Congress to pass these resolutions of disapproval of the 2023 WOTUS rule in order to keep the current regulatory definitions in place.” (43 Trade Associations, Letter to Sens. Carper and Capito, 2/27/2023)

Infrastructure Trade Groups: ‘By Muddying Federal Clean Water Act Jurisdiction, EPA’s Regulation Directly Contradicts The Bipartisan Infrastructure Law’s Goal Of Improving The Project Review And Approval Process’

AMERICAN PIPELINE CONTRACTORS ASSOCIATION (APCA): “The American Pipeline Contractors Association is grateful for the introduction of this Congressional Review Act resolution and urges Congress to come together and swiftly overturn the new burdensome and unnecessary WOTUS regulations. There is widespread understanding in Washington that permitting reforms and regulatory overhaul are necessary to meet infrastructure goals and unlock the full potential of American energy, but this decision from the administration directly contradicts those goals. APCA urges the Biden administration to roll back this regulation as soon as possible and to instead work with Congress to undertake meaningful action toward reforming pipeline and general construction permitting processes.” (U.S. Senate Environment & Public Works Committee Ranking Member, Press Release, 2/08/2023)

AMERICAN ROAD & TRANSPORTATION BUILDERS ASSOCIATION VICE PRESIDENT OF LEGAL & REGULATORY ISSUES NICK GOLDSTEIN: “The recent Waters of the United States definition from the Environmental Protection Agency (EPA) would add more delay and confusion to the delivery of critical transportation improvements. By muddying federal Clean Water Act jurisdiction, EPA’s regulation directly contradicts the bipartisan infrastructure law’s goal of improving the project review and approval process. That’s why ARTBA supports House and Senate legislation to rescind the WOTUS rule.” (U.S. Senate Environment & Public Works Committee Ranking Member, Press Release, 2/08/2023)

‘Farmers Deserve Rules That Don’t Require A Team Of Attorneys And Consultants To Identify ‘Navigable Waters’ On Their Land’

AMERICAN FARM BUREAU FEDERATION PRESIDENT ZIPPY DUVALL: “Farmers and ranchers are committed to protecting the land and water they rely on to grow food for America’s families. Unfortunately, the back and forth over water regulations threatens the progress made to responsibly manage natural resources. We appreciate Congressmen Sam Graves and David Rouzer, and Senator Shelley Moore Capito for introducing a joint resolution to use the Congressional Review Act to stop the new Waters of the U.S. rule from going into effect. Farmers deserve rules that don’t require a team of attorneys and consultants to identify ‘navigable waters’ on their land.” (U.S. Senate Environment & Public Works Committee Ranking Member, Press Release, 2/08/2023)

AMERICAN SOYBEAN ASSOCIATION (ASA) PRESIDENT DARYL CATES: “We appreciate Representatives Graves and Rouzer for leading important efforts to rescind the recently released Waters of the U.S. rule, which in no way provides the clear, nationwide regulatory certainty farmers and land managers have requested repeatedly. In the latest WOTUS iteration, EPA and Army Corps use a confusing two-part standard to identify which waters are considered WOTUS—continuing to rely on the ‘significant nexus’ standard that is currently before the Supreme Court in Sackett v. EPA, and expanding the reach of the ‘relatively permanent’ standard compared to the much-maligned 2015 rule. Additional changes to the longstanding ‘prior converted cropland’ provisions will possibly stifle ag owners’ ability to sell their land to those they choose. We need champions in Congress to continue pushing for reversal of these potentially damaging provisions.” (U.S. Senate Environment & Public Works Committee Ranking Member, Press Release, 2/08/2023)

Kentucky Farmers: ‘The New WOTUS Rule Gives The Federal Government Sweeping Authority Over Private Lands, While Creating Uncertainty For America’s Farmers,’ ‘EPA Decided To Favor The Political Interests Of Activist Groups Over Due Process And The Regular Order Of Governing’

KENTUCKY FARM BUREAU PRESIDENT MARK HANEY: “We have reached a point where the Waters of the U.S. situation must be rectified. The current administration in Washington has rewritten the WOTUS rule to allow for sweeping federal government overreach on family farms and increasing the federal government’s regulatory authority. As we await a Supreme Court ruling on the matter, this unnecessary action is a step in the wrong direction and stands in the way of the American farmer, whom we depend on to feed this country and the world. Farm families have always led the way in stewardship when it comes to natural resources, but we need clear direction on the definition of navigable waters and WOTUS. This direction must also be respectful of the property rights of landowners and not place unnecessary burdens on those who do so much to support this country. The latest WOTUS rule from the EPA takes us right back to a place of ambiguity and is simply unworkable for farm families.” (Email to Sen. McConnell’s Office, 2/07/2023)

KENTUCKY PORK PRODUCERS ASSOCIATION PRESIDENT ERIC HEARD: “The latest version of WOTUS is incredibly troubling to farmers across the country, and especially in the state of Kentucky. We are concerned that rather than wait for the US Supreme Court to rule on this topic in the coming days, EPA decided to favor the political interests of activist groups over due process and the regular order of governing. The result is a highly flawed rule that once again dramatically seeks to expand federal control over farmers private lands. EPA’s latest WOTUS rule creates great uncertainty for those farmers and is designed to ultimately give out of state activist groups and trial lawyers the right to sue farmers for simply farming.” (Email to Sen. McConnell’s Office, 2/07/2023)

KENTUCKY CORN GROWERS ASSOCIATION PRESIDENT JOSH LANCASTER: “The new WOTUS rule gives the federal government sweeping authority over private lands, while creating uncertainty for America’s farmers. As corn growers, we support protecting the waterways across the country, but this does not require that drainage and water features, which are distant from relatively permanent flowing tributaries, be made subject to EPA’s regulations. It is deeply disappointing that EPA has ignored the feedback it has received from farmers over regulations that are so consequential to our work and livelihood.” (Email to Sen. McConnell’s Office, 2/07/2023)

FLASHBACK: The Obama Administration’s WOTUS Rule Constituted ‘A Massive Power Grab By Washington,’ Causing ‘A Nightmare’ For Farmers And Small Businesses

“Barack Obama's water war… a massive power grab by Washington.” (“Barack Obama's Water War,” Politico, 5/27/2015)

• “…it will give bureaucrats carte blanche to swoop in and penalize landowners every time a cow walks through a ditch.” (“Barack Obama's Water War,” Politico, 5/27/2015)

“The water regulation… has become one of the administration’s most high-profile and controversial regulations in recent years. Opponents of the rule, which include a range of agriculture and energy companies and their congressional representatives from rural and energy-intensive states, say the regulation amounts to a federal intrusion into states’ rights.” (“House Votes to Overturn Expanded Waterway Regulations,” The Wall Street Journal, 1/13/2016)

“President Obama on Wednesday announced a sweeping new clean water regulation meant to restore the federal government’s authority to limit pollution in the nation’s rivers, lakes, streams and wetlands. The rule, which would apply to about 60 percent of the nation’s bodies of water, comes as part of a broader effort by Mr. Obama to use his executive authority to build a major environmental legacy” (“Obama Announces New Rule Limiting Water Pollution,” The New York Times, 5/27/2015)

• 375 TRADE ASSOCIATIONS: “This rule will have a far-reaching impact and make it even more difficult to create opportunities and jobs in this country. EPA's actions are just wrong and the U.S. Chamber has brought together organizations from across the country to call for this proposal to be immediately withdrawn.” (U.S. Chamber of Commerce, Press Release, 11/12/2014)

DON PARRISH, American Farm Bureau Federation: “It’s going to cause a nightmare for farmers,’ said Don Parrish, senior director of congressional relations for the American Farm Bureau Federation.” (“Obama Announces New Rule Limiting Water Pollution,” New York Times, 5/27/2015)

NFIB VICE PRESIDENT OF PUBLIC POLICY AMANDA AUSTIN: “The Waters of the United States rule would make developing property a nightmare for small businesses. Small businesses simply don’t have the resources to pay the fees and hire the consultants to help them navigate the Clean Water Act. The Environmental Protection Agency didn’t even bother to consider how this rule would affect small firms with limited ability to cut through the red tape.” (“Small Business Calls on House to Stop Waters Rule,” NFIB Website, 1/12/2016)

• “As a result of this new regulation, the Agencies are bringing seasonal streams, ponds, ditches, and depressions in fields into federal jurisdiction. The financial impact of this rule will affect small businesses disproportionately; Clean Water Act permits can cost tens of thousands of dollars and lead to lengthy project delays.” (NFIB, Letter to House Members, 1/11/2016)

Former Democrat Senators: ‘There Is Not One Single Federal Regulation In The Entire Country That Has Caused More Concern… Than This Waters Of The United States’

FORMER SEN. HEIDI HEITKAMP (D-ND): “‘There is not one single federal regulation in the entire country that has caused more concern in the state of North Dakota than this Waters of the United States proposed regulation,’ Heitkamp said. ‘There is incredible uncertainty out there.’” (“Senators Target Obama’s Water Rule,” The Hill, 4/30/2015)

• SEN. HEITKAMP: “Farmers across North Dakota and the nation deserve better than the sweeping federal rules regulating possibly every pothole on their land – they deserve certainty, and they deserve to be heard before any rule goes into effect.” (Sen. Heitkamp, Press Release, 8/27/2015)

FORMER SEN. JOE DONNELLY (D-IN): “That is why it is incredibly important that the EPA rewrite the Waters of the United States rule with input from the people who live and work on the land and alongside these waters every day.” (Sen. Donnelly, Press Release, 4/30/2015)