On January 18th, the Federal Register officially published the Biden Administration’s final Waters of the United States, or WOTUS, rule. The rule was immediately met with heavy pushback from Republicans, like me. States and industry groups everywhere who saw the harm this new policy will have on Americans wasted no time filing lawsuits to stop the implementation of the rule. Texas filed a lawsuit on the same day the rule was published.
A variety of agriculture groups, such as the American Farm Bureau Federation, the National Cattlemen’s Beef Association, and the U.S. Poultry and Egg Association have also filed lawsuits attempting to overturn the rule.
I know this issue is a top priority for constituents in agriculture and related industries. Everyone from the newly added to the 9th Bedford County, to Washington County has brought concerns to my attention. One of the first meetings I had in Bedford was about agricultural issues, including WOTUS. As soon as the Cattlemen announced their lawsuit, I heard from Gene Copenhaver of Washington County, who serves as their Policy Division Vice Chair.
With the passage of the Clean Water Act of 1972, the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (the Army Corps) were given authority to define what constitutes the “waters of the United States.” Due to the 2006 U.S. Supreme Court case Rapanos v. United States, which challenged federal jurisdiction to regulate isolated wetlands under the Clean Water Act, the “significant nexus” test was created. The test used vague and expansive language that encouraged regulators to interpret the definition of WOTUS as increasingly broad.
In 2015, under the Obama Administration, the EPA and Army Corps issued their Clean Water Rule, incorporating the “significant nexus” test from Rapanos. The two agencies took a sweeping approach to determine which waters fell within the definition. I criticized the rule at the time because it created regulatory uncertainty for too many folks – farmers, ranchers, small businesses, landowners, including homeowners, etc. – whose private land was unnecessarily burdened by this federal overreach.
Criticism of the Clean Water Rule was bipartisan. In May 2015, just after the Obama Administration announced their WOTUS rule, I joined 230 Members of Congress, from both sides of the aisle, in urging the EPA and the Army Corps to withdraw their rule. I also supported the Regulatory Integrity Protection Act, as did 24 House Democrats, requiring the EPA to withdraw the rule.
In 2020, the Trump Administration thankfully replaced the 2015 rule, issuing the Navigable Waters Protection Rule (NWPR), removing unneeded red tape for millions of Americans across the country. The rule did away with the “significant nexus” test and provided more clarity for property owners.
Unfortunately, this victory was short lived. With the new Biden Administration, came new regulations.
In December of 2021, the EPA and the Army Corps issued their proposed WOTUS rule, repealing the NWPR, and replacing it with what they characterized as a “pre-2015 rule definition”. Many immediately voiced their criticism of the Administration’s new proposal – it stripped provisions of the NWPR, removing needed certainty for many individuals and businesses.
It also established significant criminal and civil penalties for violations to the Clean Water Act, which were extremely concerning. These new penalties meant jail time and thousands of dollars in fines a day, once again placing an undue burden on Americans who have had to keep up with ever-changing rules.
Further, just after the proposed rule was released, the Supreme Court agreed to take up Sackett v. EPA, a case challenging the “significant nexus” test used in WOTUS.
I, along with 200 other Members of the House of Representatives, urged the EPA and Army Corps to wait until the Supreme Court issued their opinion before releasing another final WOTUS rule.
Unfortunately, the EPA and Army Corps ignored this common-sense request, issuing their final rule on December 30th.
By doing so, the EPA and Army Corps discounted the Supreme Court’s pending decision, which will likely impact their action.
Throughout this process, I’ve listened closely to the concerns of constituents and I am looking for opportunities in Congress to oppose this flawed policy.
Also, before writing this column, I agreed to join a letter with other Members of Congress to urge the EPA and Army Corps to rescind the rule and postpone any subsequent agency action until the Sackett decision is announced by the Supreme Court.
