The Biden Administration’s massive regulatory overreach covering waterways of the United States (WOTUS) was rocked twice in the past few weeks thanks to a federal court ruling, and U.S. House approval of a resolution that would overturn the EPA’s recent rulemaking. More is in the works to protect those especially vulnerable to the federal power grab – the farmers, ranchers, and builders. The attorneys general in twenty-four states have signed a lawsuit. Affected industry groups have filed another, and an impending U.S. Supreme Court decision could also place limits on the new rule.
“Congress passed a law governing ‘navigable waterways’ and Joe Biden is going to apply it to mudpuddles and drainage ditches,” said PMA President & CEO David N. Taylor. “The executive branch must not be allowed to exercise authority beyond what is explicitly granted by Congress or the Constitution.”
The rule was first enacted under the Obama administration, reversed under the Trump administration, and now under Biden the regulators have been unleashed again. The EPA is interpreting a provision in the 1972 Clean Water Act, which grants the agency jurisdiction over “navigable waters,” to an absurd level where conceivably a farmer might have to seek federal permission to level out a shallow ditch.
Recently, a federal judge in Texas issued a preliminary injunction that applies to Texas and Idaho; two states that filed the lawsuit.
In his ruling, U.S. District Judge Jeffrey Vincent Brown wrote that the EPA and Army Corps’ interpretation of the Clean Water Act to include all interstate waters without “any limiting principle,” raises “serious” federalism questions. He added that the rule is likely to irreparably harm Texas and Idaho for intruding on their sovereignty and imposing unrecoverable compliance costs.
The House resolution approved on March 9 cited the “enormous impacts” the rule will have on businesses and property owners.
“American families, farmers, small businesses, and entire communities are suffering under the economic crises caused by the disastrous Biden policies of the last two years,” Rep. Sam Graves (R-MO), the sponsor of the resolution said in a statement after the vote. “The last thing they need is this Administration’s inexplicable decision to move the country back toward the overreaching, costly, and burdensome regulations of the past, which is exactly what this WOTUS rule does.”
On January 18, business and agriculture groups, including American Petroleum Institute, American Farm Bureau Federation, and Associated General Contractors of America, filed a lawsuit and on February 16 the attorneys general in twenty-four states filed theirs. And, sometime between now and June the Supreme Court is expected to rule in Sackett v. EPA, a ruling that could limit the standing water that would be considered “navigable.”
“You’d think such a consequential case would have caused the Biden administration to pause before adding to the ambiguity,” wrote National Review’s Elizabeth Milito of the impending Supreme Court decision. “But typical of Washington, D.C. bureaucrats, the EPA instead rushed to issue this ill-advised and harmful rule. Such impatience is imprudent, especially given the damage it’s already doing to small businesses.”
Nile Elam, the Senior Director of Energy and Resources Policy for the National Association of Manufacturers, is advising that the public and policy stakeholders to learn about “the immense permitting regulatory efforts necessary under local and state jurisdictions, and the need for a complementary WOTUS rule that advances permitting protections at the federal level while providing certainty for the regulated community.”
The new rule also, “expands federal jurisdiction beyond traditional navigable waters,” Elam added. “Because of these expansions and ambiguous terms, the careful balance between local and state regulators is unpredictable and can leave permit seekers with little guidance, aside from the need for more time and money to achieve their permitting requests.”