U.S. Rep. Dan Newhouse (R-WA), chairman of the Congressional Western Caucus, recently led 201 Republicans in calling on the Biden administration to drop its plan to expand the scope of “waters of the United States” (WOTUS).
“The Obama-era waters of the United States — or WOTUS — is the single most overreaching federal regulation in history,” Rep. Newhouse said in a March 14 statement. “This dangerous policy empowers federal bureaucrats to place every single body of water — every ditch, puddle and stream — under federal regulation.”
The 1972 amendments to the Clean Water Act established federal jurisdiction over “navigable waters,” defined in the act as the “waters of the United States,” according to the Environmental Protection Agency (EPA), which along with the U.S. Army Corps of Engineers on Nov. 18, 2021, announced the signing of a proposed rule to revise the definition of WOTUS.
“WOTUS is more than just a logistical nightmare that’s plagued the landowners, businesses, farmers, ranchers, and rural communities in central Washington and across the country for years,” Rep. Newhouse said. “It calls into question whether farmers can even begin to work their land.”
That sentiment was echoed in a March 8 letter that Rep. Newhouse and his GOP colleagues sent to EPA Administrator Michael Regan and U.S. Assistant Secretary of the Army for Civil Works Michael Connor urging they halt all current rulemaking actions surrounding the WOTUS definition as the U.S. Supreme Court takes up a landmark case that could impact their decisions.
“The agencies should instead use this time to continue meaningful engagement with stakeholders, including convening an SBAR [Small Business Advocacy Review] panel,” wrote the lawmakers. “This would allow the agencies to fully understand and account for the impacts to small businesses, farmers, rural communities, and countless other stakeholders that will result from any regulatory change to the definition of WOTUS.”
Specifically, the High Court is considering Michael Sackett, et ux., Petitioners v. Environmental Protection Agency, et al., in which the issue is whether the U.S. Court of Appeals for the 9th Circuit set forth the proper test for determining whether wetlands are “waters of the United States” under the Clean Air Act.
“Confusion, unpredictability and litigation have surrounded the scope of federal authority of our nation’s navigable waterways for decades,” Rep. Newhouse and his colleagues wrote, pointing out that the Biden administration’s plan to revise the WOTUS definition would be the sixth change in 10 years.
And if enacted, another new rule would take an “expansive approach to the definition of WOTUS, creating additional costs and burdens for regulated stakeholders,” they wrote, noting that America’s rural communities “do not deserve to be punished by constant regulatory uncertainty.”
“Any further rulemaking prior to the Supreme Court’s decision will jeopardize Americans’ best interests and fail to ensure our communities will not be subject to further uncertainty and government overreach,” they wrote.
A premature rulemaking also would hinder community efforts to build out and improve the nation’s infrastructure, as the regulatory definition of WOTUS has a direct impact on agencies’ ability to authorize and complete infrastructure projects in a timely and efficient manner, according to their letter.
Among the members who also signed the letter were U.S. House Republican Leader Kevin McCarthy (R-CA), U.S. House Republican Whip Steve Scalise (R-LA), and the entire Congressional Western Caucus.