Longtime tensions over federal wetlands rule return in U.S. House WOTUS hearing

The definition of so-called Waters of the United States, or WOTUS — wetlands that fall under federal jurisdiction of the Clean Water Act — has been in a state of flux for years, often in conjunction with changing administrations in the White House. 

Republicans and their rural constituents have argued the Biden administration’s approach unfairly restricts farmers from improving their own property, while Democrats say strong water regulations are fundamental to healthy communities.

Members of both parties on the House Transportation and Infrastructure Subcommittee on Water Resources and the Environment groused at a Wednesday hearing over the issue’s uncertainty.

“Regulations of any type should be simple and easy to follow,” subcommittee Chairman David Rouzer, a North Carolina Republican, said. “They should carry out the intent of the law in a clear and transparent manner, making them easily enforced. There should be no subjectivity or wiggle room for any bureaucrat or bureaucrats to substitute their own biases. Unfortunately, that’s not the case here.”

Challenge from Idaho

The Supreme Court is expected to rule on a case in which Idaho landowners challenged the Biden administration’s definition of Waters of the United States. 

Republicans said Wednesday the administration should suspend enforcement action until the court settles the matter. Full committee Chairman Sam Graves, a Missouri Republican, sponsored a Congressional Review Act resolution this week to nullify the administration’s rulemaking on the matter. 

Unlike most legislation, that resolution would need only a simple majority in the House and Senate, increasing its chances of success.

Graves, Rouzer and others who support the measure say it would be prudent because the Biden administration’s rule could easily be stripped by the Supreme Court in the coming weeks or months anyway. The administration never should have wasted time writing a regulation that could soon be overturned, they said.

“It would be common sense to pause and wait to see what the Supreme Court decides before jamming this through now,” Rouzer said of the Biden administration’s rule.

The panel’s ranking Democrat, Washington’s Rick Larsen, countered that Congress moving to reverse the rule would create even more uncertainty. Whatever the Supreme Court’s eventual ruling, adding another chapter to the back-and-forth recent history of Waters of the United States would not help, he said.

“Should that resolution become law, it has the potential to cause even more chaos and confusion,” Larsen said. 

The Obama administration formulated a rule in 2015 seeking to clarify what waters on private properties the Environmental Protection Agency and Army Corps of Engineers could regulate. The Trump administration significantly narrowed what could be included and Biden expanded it again.

But the issue goes back even further, California Democrat Jared Huffman noted Wednesday. The Obama administration got involved precisely because “incredible uncertainty” already existed.

State empowerment 

Republicans, Democrats and the witnesses they had testify Wednesday disagreed about the merits of a broad definition of Waters of the United States.

Larsen said his state was “defined by” its clean waters. Maintaining pristine lakes, rivers, streams and the Puget Sound required a strong partnership between the state and the federal government, he said.

Dave Owen, a professor at the University of California College of Law, said a broad definition allowed for stronger enforcement of the 1972 Clean Water Act, which was intended to help build state-federal partnerships to allow states to address water issues that went beyond their borders.

“The Clean Water Act was designed to address major issues that states could not address on their own,” Owen said. “Polluting industries will play states against each other, creating a race to the bottom and seeking the weakest possible form of regulation.”

The Biden rule actually more clearly defines what is covered by the Clean Water Act by its more broad definition, Owen said. The Trump administration’s distinction between waters that were covered and those that were not created more uncertainty, he said.

GOP cites overreach 

But Republicans argued the Biden administration’s enforcement of the rule was divorced from the reality experienced by the people it affected.

“Sweeping legislation like the Clean Water Act, while certainly beneficial, can lead to bureaucratic overreach and regulatory headaches that often don’t make sense to regulated communities,” Rouzer said. 

Wisconsin Republican Derrick Van Orden said he had manure on his boots from visiting family farms and hearing how federal regulations affected them. He implied that Owen, who articulated a defense of strong federal oversight, did not have that experience.

EPA and Army Corps of Engineers regulators were in a similar position, Van Orden said.

“We have a bunch of nameless bureaucrats who are trying to apply a 4,000-mile screwdriver to fix a problem that they can’t even see,” Van Orden said. “So, when we have people that are deciding the fates of our family farmers, without firsthand knowledge, they’re actually degrading the ability of them to produce food for the world. And that is shameful.”

Farmers have a stake in upkeep of the environment and would be keen to contribute to conservation — if federal regulators would make it easier, Missouri Farm Bureau President Garrett Hawkins told the panel. 

Hawkins questioned whether conservation efforts on his farm could land him in trouble with federal authorities.

“If you make the programs workable, if you cut red tape, my fellow farmers and ranchers will raise their hand and walk through the door of their USDA office and say they want to put more conservation on the ground,” he said.