Capito wants to rein in Biden administration water regulations

Feb. 8—Sen. Shelley Moore Capito, R-W.Va., is leading an effort with all 48 of her GOP colleagues to rein in regulations in the Biden administration's Waters of the United States (WOTUS) rule.

The move is being done with a Congressional Review Act (CRA), a joint resolution of disapproval, she said last week during a virtual press briefing.

"It is where you look at the regulations that the administration has put forward and try to take them down," she said.

Capito, Ranking Member of the Environmental and Public Works (EPW) Committee, said that in the WOTUS rule, it is a matter of the administration going too far on regulations.

"If you look at some of the parameters (of what is defined as a waterway), this administration has gone way, way too far in terms of defining what water is," she said, "which adds on more permitting, more time and more expense ... especially in an agricultural setting. I am very concerned about that."

For example, in a lawsuit filed last month by the National Cattlemen's Beef Association (NCBA) challenging the WOTUS rule, NCBA Chief Counsel Mary-Thomas Hart said the the administration's WOTUS definition is "an attack on farmers and ranchers."

"The rule removes longstanding, bipartisan exclusions for small and isolated water features on farms and ranches and adds to the regulatory burden cattle producers are facing under this administration," she said.

The NCBA had already filed statements about the importance of "maintaining agricultural exclusions for small, isolated, and temporary water features, like ephemeral streams that only flow during limited periods of rainfall but remain dry the majority of the year."

The resolution comes after the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers announced a new rule in December 2022 repealing the Navigable Waters Protection Rule (NWPR), and changing the definition of Waters of the United States in a way that will expand federal regulatory authority.

"With its overreaching navigable waters rule, the Biden administration upended regulatory certainty and placed unnecessary burdens directly on millions of Americans," Capito said when the CRA was filed. "This Congressional Review Act resolution of disapproval will give every member of Congress the chance to stand with farmers, ranchers, landowners, and builders, and protect future transportation, infrastructure, and energy projects of all kinds in their states. I appreciate the widespread support we've received in both the Senate and House, and across the country, as we fight to place an important check on this misguided overreach from the Biden administration."

At the same time Capito was introducing her effort on Feb. 2, Rep. Morgan Griffith, R-9th District, was helping lead the charge with 153 of his colleagues to introduce a joint resolution of disapproval of WOTUS under the CRA in the House.

Griffith said the WOTUS rule will lead to sweeping changes to the federal government's authority to regulate what is considered a navigable water, "with enormous impacts on small businesses, manufacturers, farmers, home and infrastructure builders, local communities, water districts, and private property owners."

"I am pleased to co-sponsor this resolution to voice disapproval of flawed policy put forth by the Biden Administration's EPA and Army Corps. Once again, these agencies have placed an undue burden on American families and businesses, who have had to keep up with ever-changing WOTUS rules," Griffith said in a statement. "To make matters worse, this rule comes at a time when the Supreme Court is considering Sackett v. EPA, a case which will have a direct impact on how and if this rule will be implemented. Congress must do what it can to pushback on such an ill-advised action by the Biden Administration."

The Sackett case involves an Idaho couple's legal battle to construct a house on a lake but construction was blocked by the EPA, which said the property contained "wetlands" protected by the Clean Water Act.

Griffith said the new WOTUS rule voids the 2020 Navigable Waters Protection Rule, a rule that had provided "much-needed clarity and certainty for the regulated community throughout the nation."

It also reverts back to the Obama Administration's "era of greater uncertainty and expansive federal jurisdiction to regulate navigable waters under the Clean Water Act, including wetlands, ephemeral streams, and ditches," he added.

Griffith said it moves the federal government towards a regulatory regime "under which agency bureaucrats decide what is regulated, rather than working with those who will be affected, at a time when the Supreme Court has yet to issue an opinion on a pending WOTUS case (Sackett) that will directly impact the rule."

Capito provided background on the issue.

In 2015, the Obama administration finalized a rule that expanded the definition of WOTUS, creating confusion and burdensome red tape, especially for West Virginia's agriculture, construction, and coal industries.

The Trump administration released a proposed rule to replace the 2015 WOTUS rule with a new one that provided much-needed predictability and certainty for farmers by establishing clear and reasonable definitions of what qualifies as a "water of the United States." The NWPR was finalized in 2020.

On day one of his administration, President Biden signed an executive order to begin the process of rolling back the Trump administration's NWPR.

Capito has led the charge against the changes since February 2021, including an attempt to codify the NWPR and trying to halt action until after the Sackett ruling.

In September 2022, Capito led 46 of her Republican colleagues in introducing the START Act, comprehensive federal regulatory permitting and project review reform legislation that would have codified the Trump administration's NWPR definition of "waters of the United States" under the Clean Water Act.

— Contact Charles Boothe at cboothe@bdtonline.com

Contact Charles Boothe at cboothe@bdtonline.com