By Nathan Worcester
Representatives at a Congressional hearing moved closer to challenging President Joe Biden’s new rule defining the Waters of the United States (WOTUS) under the Clean Water Act, an issue pitting many farmers, ranchers, and other landowners against many environmentalists and federal bureaucrats.
The meeting brought together members of the Transportation & Infrastructure Committee’s Subcommittee on Water Resources and Environment, now led by Rep. David Rouzer (R-N.C.).
“There’s no greater example of bureaucratic overreach under the Clean Water Act than the regulatory nightmare of complying with and understanding the definition of a ‘Water of the United States,’” Rouzer said during the Feb. 8 event.
Rouzer, Transportation Committee Chair Sam Graves (R-Mo.), and more than 140 other members of the House had issued a joint resolution of disapproval on Feb. 2 regarding the Biden administration’s WOTUS rule.
Shelley Moore Capito (R-W.Va.) led all 49 Senate Republicans in issuing an identical piece of legislation that same day.
If both chambers pass their respective resolutions with a two-thirds majority, Biden’s Jan. 2023 WOTUS rule could be struck down even if he seeks to veto it—a prospect dimmed for GOPers by Democrats’ dominance in the Senate and the slimness of Republicans’ House majority.
Republicans say Biden’s new rule takes WOTUS back in time, to a more expansive standard like the one established under former President Barack Obama.
Some environmental advocates feel that fits the spirit of the original Clean Water Act. Amendments to that 1972 law provided the initial federal authority over “waters of the United States,” defined as “navigable waters.”
Trump’s 2020 WOTUS ‘Too Lax’
They argue that former President Donald Trump’s 2020 WOTUS rule, issued by the Environmental Protection Agency and the Army Corps of Engineers, is too lax. For one thing, it does not include ephemeral streams, groundwater, or some other wetlands.
“If the 2020 rule had taken water-quality science seriously, it would have acknowledged how important protecting wetlands and small streams is to protecting water quality everywhere,” Dave Owen, a professor at the University of California College of Law, said in written testimony to the hearing.
Trump’s rule was vacated by an Arizona judge in August 2021 before being restored by the Supreme Court in April 2022.
Biden, for his part, moved on WOTUS during his first day in office, pledging in an executive order to review Trump’s rule.
Opponents of the Biden rule believe it to be overly broad, asserting it’s part of a general trend of the federal government accumulating too much power.
“Congress was well aware of the ecological importance of wetlands, but as recognized in the 1973 final report of the congressionally chartered National Water Commission, Congress left the regulation of isolated wetlands and waters to the states,” said Susan Parker Bodine, a partner with Earth & Water Law, in her own written testimony.
“The agencies are trying to codify the authority to expand their jurisdiction with case-by-case determinations by field staff and get judicial deference for those actions,” she later added.
Rancher Garrett Hawkins of the Missouri Farm Bureau explained why he thinks the Biden rule could prove overly burdensome to American agriculture.
“On much of our most productive farmlands (i.e., areas with plenty of rain), it would be extremely difficult to avoid entirely the small wetlands, ephemeral drainages, and ditches in and around farm fields when applying crop protection products and fertilizer,” he said in written testimony.
“And yet, permits could also be required for those activities, and even accidental deposition would be unlawful, even when those features are completely dry and even harder to differentiate from the rest of the fields.”
Trump’s ‘Dirty Water Rule’ vs Biden’s ‘Woke-US’
Trump’s 2020 WOTUS rule came under criticism from the Water Subcommittee’s ranking member, Rep. Grace Napolitano (D-Calif.), who labeled it the “dirty water rule.”
“We recognize there is a cost to protecting our communities, our sources of drinking water, and our environment. However, we believe this cost should be borne by those seeking to pollute our waterways or to fill our wetlands for their own personal gain, rather than transferring that cost to average Americans or to downstream states,” she said.
Rep. John Garamendi (D-Calif.), a rancher in his own right, challenged Hawkins on how the Missouri rancher would regulate waters on his own property.
“We in Missouri are very comfortable with the regulatory authority in our Department of Natural Resources and the example of cooperative federalism that we see under the Clean Water Act,” Hawkins said, adding that the Trump-era rule’s “bright lines” brought welcome certainty.
Garamendi said that clarity on the law is needed. “Otherwise, it’s going to be back and forth forever, as the shifting winds of Congress and the presidency happen,” he said.
Rep. Derrick Van Orden (R-Wis.), a retired Navy SEAL, dubbed the Biden WOTUS rule “Woke-US.” He argued that it would actually make it harder for farmers in his Upper Midwestern district to continue their own environmental stewardship involving small ponds on their land.
“If Woke-US goes into effect, these farmers will stop these practices, as their ponds will become navigable waterways and subject to draconian federal regulations. And what this means is that all of these ag byproducts will enter the watersheds and wind up in the Mississippi River. That is the exact opposite intended consequence of this foolish regulation,” he said.
“When’s the last time you stepped in manure on a small family farm?” he asked Owen, the California law professor.
“This isn’t the last time, but even though I grew up in the suburbs, we were the one house in the Boston suburb that got regular deliveries of horse manure for my mother’s garden,” Owen answered.