In January, the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (the Army Corps)’s published a final Waters of the United States, or WOTUS, rule. This rule is scheduled to take effect on March 20th. It makes significant changes to expand the federal government’s authority to regulate any body of water.
Using sweeping terms to define millions of acres, the rule places enormous burdens on private property owners, creating uncertainty for Americans.
This new rule arguably gives the EPA and Army Corps the ability to regulate a medium-sized mud puddle in your yard. When building a fence on their land, Americans shouldn’t need a team of attorneys to navigate federal regulations.
The Obama administration proposed a similar rule. I have always opposed this flawed regulatory approach.
As soon as the final Biden rule was published, I co-sponsored House Joint Resolution, H.J.Res.27, to terminate this rule through the Congressional Review Act, which provides a mechanism to overturn regulations.
I voted for H.J.Res.27 on March 9th, which passed 227-198.
The Senate must also pass the resolution in their chamber. I think the Senate is likely to pass this resolution.
However, the President must sign the resolution into law. I do not foresee that happening.
As an aside, I have always thought this part of the Congressional Review Act was illogical because it takes both houses of Congress and the President to pass a bill, but an unelected bureaucracy working for the president can pass regulations on their own. The elected Congress ought to be able to disapprove with a mere majority.
Since that is not currently the law, the fight against this bad policy turns to the courts.
After the rule was published in January, Texas filed a lawsuit to stop the rule. The lawsuit argues that the federal agencies tasked with implementing this rule, “unconstitutionally and impermissibly expand their own authority beyond Congress’s delegation in the Clean Water Act—intruding into state sovereignty and the liberties of the states and their citizens.”
I agree with the theory put forward in the Texas lawsuit.
In February, Virginia’s Attorney General Jason Miyares filed a similar lawsuit against the EPA and Army Corps. He did so along with 23 other states.
I support Attorney General Mirayes joining the lawsuit on behalf of Virginia as landowners in the 9th District and around the state shouldn’t have to worry about the federal government policing rivulets or medium-sized mud puddles.
As the Farm Bureau said, farmers are worried about noncompliance after doing something as simple as plowing their fields.
WOTUS sounds like big brother has reared its ugly head.
Recognizing the negative effect this rule will have on thousands of small businesses, multiple business groups like the National Cattlemen’s Beef Association (NCBA) and the U.S. Chamber of Commerce, filed their own lawsuit in February to challenge the Biden Administration’s WOTUS rule.
In their press release announcing their lawsuit, the NCBA Policy Vice-Chair Gene Copenhaver of Washington County, Virginia, stated, “My cattle operation in southwest Virginia has a creek that only carries water after large storms. Under this WOTUS rule, we could be subject to complex federal regulation.”
That being said, this all may soon be a moot point.
The Biden Administration went forward with their new WOTUS rule despite the fact that there is an impending Supreme Court ruling in Sackett v. EPA, which is expected to provide a plain, unambiguous, meaning of the law upon which the WOTUS rule is based.
In the 2006 U.S. Supreme Court case Rapanos v. United States, which challenged federal jurisdiction to regulate isolated wetlands under the Clean Water Act, Justice Kennedy created the “significant nexus” test. In determining what constituted waters of the United States, this test had two parts: First, there must be a connection to downstream waters of the U.S. Second, the area in question must have an effect on the chemical, physical, or biological integrity of traditional navigable water.
Many have criticized the “significant nexus” test as being too vague and that the expansive language encourages regulators to interpret the definition of WOTUS as increasingly broad.
While the Trump administration did not utilize the test, instead opting for a narrower definition, the Obama and Biden Administrations both used the “significant nexus” test when defining WOTUS.
If the Supreme Court rules that the significant nexus test is not valid or changes it in a significant way, the Biden Administration rule will be void and they will have to start the process all over again.
If you have questions, concerns, or comments, feel free to contact my office. You can call my Abingdon office at 276-525-1405 or my Christiansburg office at 540-381-5671. To reach my office via email, please visit my website at www.morgangriffith.house.gov.
