Newhouse Leads 201 Members in Calling on the Biden Administration to Drop WOTUS Expansion

WASHINGTON, D.C. – Today, Rep. Dan Newhouse (R-WA), Chairman of the Congressional Western Caucus, released the following statement after leading 201 House Republicans, including House Republican Leader Kevin McCarthy (R-CA), House Republican Whip Steve Scalise (R-LA), House Republican Conference Chair Elise Stefanik (R-NY), and their entire Western Caucus membership, in sending a letter to the Biden Administration calling on them to drop their plan to expand the scope of “waters of the United States” (WOTUS):

“The Obama-era Waters of the United States—or WOTUS—is the single most overreaching federal regulation in history. This dangerous policy empowers federal bureaucrats to place every single body of water—every ditch, puddle, and stream—under federal regulation,” said Rep. Newhouse. “WOTUS is more than just a logistical nightmare that’s plagued the landowners, businesses, farmers, ranchers, and rural communities in Central Washington and across the country for years. It calls into question whether farmers can even begin to work their land. I am proud to lead this effort, so Central Washington and rural communities like it across the country can escape this government overreach and do what they do best: thrive.”
 
Beyond opposition to the unnecessary burdens a broader WOTUS definition would have on businesses, communities, and private citizens, the letter outlines the uncertainty that would be created if such a decision were made before the recently announced WOTUS-related Supreme Court case (Sackett) is decided. The members wrote, “not only would this be a misuse of agency resources and taxpayer dollars, it would only serve to leave the regulated community with prolonged uncertainty regarding regulations and enforcement.”
 
The Members detailed their firm opposition to the current WOTUS rulemaking: 

• A Supreme Court ruling on WOTUS later this year will have significant impacts on any rule the Agencies put forward.  A premature rulemaking will compound existing uncertainty and confusion for stakeholders, who have already experienced years of uncertainty over WOTUS definition and scope changes.
• The Agencies have stated their rulemaking will take into account “updates to be consistent with relevant Supreme Court decisions.”  With such a significant decision pending, refusing to push pause on their current rewrite rather than wait for the Supreme Court’s action could lead to another complete rewrite just months down the line, wasting taxpayer resources.
• A broader WOTUS rule will delay, obstruct, and drive up the costs of improving U.S. infrastructure, and ultimately diminish the value of funding for projects across the country, including those funded by the Infrastructure Investment and Jobs Act.
• Due to the WOTUS rulemaking’s anticipated negative impact on small businesses, the U.S. Small Business Administration’s Office of Advocacy has already requested the Agencies pause and a Small Business Advocacy Review (SBAR) panel be held.

 You can read the full letter here and below.

Dear Administrator Regan and Assistant Secretary Connor:

We write to you today regarding the United States Supreme Court’s most recent announcement to grant certiorari to Michael Sackett, et ux., Petitioners v. Environmental Protection Agency, et al. (Sackett). For almost two decades, rural communities, businesses, and industries who rely on clean water have been trapped in political and legal limbo, surrounded by a shroud of legal opinions and faulty federal regulations. On June 9, 2021, the United States Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (Corps) (collectively, the “Agencies”) announced their intent to revise the definition of “waters of the United States,” (WOTUS). Any decision by the Supreme Court on Sackett will have profound impacts on the Agencies’ rulemaking process. Therefore, we urge the EPA and the Corps to halt its current rulemaking.

The United States Court of Appeals for the Ninth Circuit has improperly held that federal jurisdiction for WOTUS should follow the “significant nexus” test laid out in Justice Kennedy’s concurring opinion in Rapanos v. United States, 547 U.S. 715 (2006), rather than a more narrow approach based on the areas the Kennedy opinion and the plurality opinion authored by Justice Scalia have in common. The Obama Administration’s 2015 WOTUS rule also followed this flawed “significant nexus” approach, resulting in an unprecedented expansion of the definition of WOTUS. This rule asserted federal jurisdiction over typically dry channels and a variety of intrastate non-navigable isolated waters. It is expected that a decision in Sackett would set forth a clearer and more appropriate test to define WOTUS and deliver certainty to the farmers, ranchers, private landowners, and industries who face the burden of this federal overreach.

Any future rulemaking must be based on fully informed legal guidance. The Agencies’ goal of developing a lasting rule can only be achieved if appropriate legal standards are met, and it is premature to develop a new rule until the Court’s Sackett opinion is issued. The Agencies themselves have stated that their rulemaking will take into account “updates to be consistent with relevant Supreme Court decisions.” We hope the Agencies’ regulatory activities remain consistent with these statements. If the Agencies move ahead with their current rulemaking, and the Court instructs the use of a more limiting test like Justice Scalia’s plurality opinion, the Agencies would be forced to implement a new rulemaking process once again post-Sackett. Unfortunately, not only would this be a misuse of agency resources and taxpayer dollars, it would only serve to leave the regulated community with prolonged uncertainty regarding regulations and enforcement.

Confusion, unpredictability, and litigation have surrounded the scope of federal authority of our nation’s navigable waterways for decades. Currently, the Administration’s plan to revise the definition of WOTUS will be the sixth change in ten years; despite the Administration’s statements that the new regulation would only be a return to the regulatory definition used before the 2015 WOTUS rule updated in conformance with judicial decisions. In reality, the rule takes a new and expansive approach to the definition of WOTUS, creating additional costs and burdens for regulated stakeholders.

Further, the Agencies certified that the new regulation would not have a significant effect on small businesses. However, the United States Small Business Administration’s Office of Advocacy, meant to serve as an independent voice for small business, disagreed with this assessment, specifically finding that the “Agencies have improperly certified the proposed rule under the Regulatory Flexibility Act (RFA) because it would likely have direct significant impacts on a substantial number of small entities.” The Office of Advocacy asked that the Agencies hold the rule in abeyance while it conducts a Small Business Advocacy Review (SBAR) panel, in accordance with the RFA.

Rural communities across the country are dedicated to clean water, and they do not deserve to be punished by constant regulatory uncertainty. Any further rulemaking prior to the Supreme Court’s decision will jeopardize Americans’ best interests and fail to ensure our communities will not be subject to further uncertainty and government overreach. A premature rulemaking will also hinder efforts in communities across the country to build out and improve our Nation’s infrastructure, as the regulatory definition of WOTUS has a direct impact on agencies’ ability to authorize and complete infrastructure projects in a timely and efficient manner. This is especially troubling timing as Congress recently approved billions of dollars in funding for critical infrastructure.

We urge the EPA and the Corps to halt all current rulemaking actions surrounding the WOTUS definition as the United States Supreme Court takes up this landmark case. The Agencies should instead use this time to continue meaningful engagement with stakeholders, including convening an SBAR panel. This would allow the Agencies to fully understand and account for the impacts to small businesses, farmers, rural communities, and countless other stakeholders that will result from any regulatory change to the definition of WOTUS. We look forward to working with you on this important issue. If you have questions, please contact Ryan Hambleton, Republican Staff Director of the Subcommittee on Water Resources and Environment, at (202) 225-9446.
 
Background:
 
In January, Rep. Newhouse called on the Biden Administration to terminate their proposed WOTUS rulemaking after the U.S. Supreme Court announced it would consider a case focused on the scope of the definition of “waters of the United States” (WOTUS).

Rep. Newhouse recently hosted a podcast episode featuring Charles Yates of the Pacific Legal Foundation, one of the contributing lawyers in the Sackett v. EPA Supreme Court case, as well as Rep. Rodney Davis (R-IL) and Illinois Farm Bureau President Rich Guebert, to discuss the impacts WOTUS has on rural communities and potential implications of the Supreme Court decision. Click here to listen.
 
In July 2021, when the Biden Administration announced their intention to revise and remand the Trump Administration’s Navigable Waters Protection Rule, Rep. Newhouse led Western Caucus Members in a bicameral letter to Environmental Protection Agency (EPA) Administrator Michael Regan and Acting Assistant Secretary of the Army for Civil Works Jaime Pinkham to express their serious concerns and demand answers about the Administration’s plans to reopen the definition of “waters of the United States.” Click here to read the letter and learn more.

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