Today, stakeholders representing farmers, homebuilders, infrastructure builders, and others testified at a hearing on the impacts and economic repercussions of the Biden Administration’s overreaching, ambiguous, and unrealistic Waters of the United States (WOTUS) rule. Last week, Transportation and Infrastructure Committee Chairman Sam Graves (R-MO) and Water Resources and Environment Subcommittee Chairman David Rouzer (R-NC) led nearly 150 of their House colleagues in introducing a joint resolution of disapproval under the Congressional Review Act (CRA) on the WOTUS rule.
Missouri Farm Bureau President Garett Hawkins discussed the profound effect the rule will have on everyday farming and ranching practices, the costs caused by the rule’s uncertainty and inconsistency, the problems associated with the ‘other waters’ category, and more. Hawkins Testimony Highlights:
“The 2015 WOTUS Rule dramatically expanded the scope of CWA jurisdiction over land used for normal farming and ranching activities. The 2022 Rule is different only in degree and timing, not kind.”
“…the process to arrive at a jurisdictional determination is tortuous and costly. A jurisdictional determination could take between six months and a year to receive, and in the meantime a farmer or rancher is stuck in limbo. Adding insult to injury, the use of case-by-case determinations threatens to create a seriously unequal playing field, where identical features may be viewed as jurisdictional or not depending upon where the property is located.”
“This rule threatens to impede farmers’ and ranchers’ ability to provide safe, affordable, and abundant food, fuel, and fiber to the citizens of this nation and the world. Their concerns are not hyperbole, nor are they isolated occurrences.”
“Considerable government resources have been expended to craft this rule, which will only be wasted when the Agencies have to return to the drawing board after a [Supreme Court] decision is handed down.”
National Association of Home Builders Chairman Alicia Huey spoke to the complications caused by the rule, the rule’s inconsistency with Supreme Court precedent, and the overall impact on the construction industry. Huey Testimony Highlights:
“Having a clearly understandable WOTUS regulatory definition empowers landowners to know when their activities require CWA permits and when the activities do not require CWA permits. Unfortunately, establishing a clear regulatory definition of WOTUS is becoming increasingly elusive.”
“My business is dedicated to developing, building, and preserving affordable housing options for all citizens. I have a unique understanding of how the federal government’s regulatory process impacts businesses in the real world. Additional regulations make it more difficult for me to provide homes or apartments at a price point that is attainable for working families. More importantly, living under a regulatory regime that relies on the significant nexus test and determinations from an unelected federal bureaucrat will make homebuilding inefficient and costly.”
“This rule will increase federal regulatory power over private property and lead to increased litigation, permit requirements, and lengthy delays for any business trying to comply. Equally important, these changes will not significantly improve water quality because much of the rule improperly encompasses water features already regulated at the state level.”
Luck Companies Environmental Manager Mark Williams testified on behalf of National Stone, Sand & Gravel Association about the confusion the WOTUS rule is causing, the Environmental Protection Agency’s (EPA) disregard for increased costs, and more. Williams Testimony Highlights:
“EPA claims this rule change is needed because so many waters are unprotected, but that is not true: states and local governments have rules that effectively manage these resources, and the pre-2015 regulatory structure is currently in place. Additionally, states and many municipalities regulate any potential negative impacts to stormwater run-off and require detailed stormwater pollution prevention plans. These plans are required for every project, both during construction and operations.”
“Ultimately, this change will disrupt the supply of aggregates to our biggest customers, which are government agencies; thus, affecting highway programs, airports and municipal projects.”
“The proposed rule will put small businesses at risk of large daily fines if a permit is required and not obtained, which could wipe out a small business that does not realize a permit is needed for work far from ‘navigable’ water….Just getting a jurisdictional determination can take months and permits can take years; how much longer will it take to break ground with so many vague and undefined terms in this new rule?”
Earth & Water Law LLC Partner Susan Parker Bodine walked through many of the legal issues with the Biden WOTUS rule, ever-expanding Clean Water Act (CWA) jurisdiction, examples of overreach that would be condoned under the rule, the “relatively permanent” and “significant nexus” tests, and more. Bodine Testimony Highlights:
“First, the history of the CWA is a history of ever-expanding federal regulation through administrative interpretations, without any change in the statute. For this reason, the claims by EPA and the Corps of Engineers (the agencies) that the rule is simply a return to the ‘pre-2015 regulatory regime’ is a myth. Second, it has required the intervention of the courts to push back on agency overreach. Third, the agencies have inaccurately characterized the 2023 WOTUS rule as a codification of Justice Scalia’s and Justice Kennedy’s opinions in Rapanos. Instead, the rule is a codification of the agencies’ prior overreach and an attempt to get judicial deference for that overreach.”
“In 1972, Congress did not tell EPA and the Corps: ‘do whatever you think is necessary to protect water.’ Instead, the CWA represents a legislative compromise that carefully prescribes the scope of federal authority.”
“The agencies attempt to assure Congress and the public that regulatory exemptions will protect farmers and landowners. However, their own history of applying those exemptions demonstrates that this assertion is not true.”
More information from today’s hearing – including full testimony, video, and statements from Chairmen Sam Graves and David Rouzer – is available here.
Many additional stakeholders have voiced their support for the WOTUS joint resolution of disapproval under the CRA, led in the House by Graves and Rouzer.