The Flawed “WOTUS” Rule Explained |

In March 2014, the Obama administration announced a proposed rule that would unilaterally expand the federal government’s authority over waters in a way never before contemplated – all of which could have serious consequences for our economy, threatening jobs, inviting costly litigation, and significantly restricting the ability of landowners to make decisions about their property and the rights of state and local governments to plan for their own development.  Dubbed by many the “WOTUS” rule, the proposal would allow waters traditionally off-limits to federal regulation to be subjected to the dictates of the Environmental Protection Agency and a gratuitous misapplication of the Clean Water Act. 

For decades the term “Waters of the United States” has been applied to mean “navigable waters” upon which boats or ships could operate.  The administration’s WOTUS rule would jettison this traditional understanding and would greatly extend the reach of federal authority.  The rule would give Washington, DC bureaucrats unprecedented powers to regulate virtually any place that water flows or accumulates anywhere in the United States.  It would allow regulation of a host of land features, including minor wetlands and typically dry streambeds that only occasionally carry storm water.

The EPA is attempting to implement this proposed rule without the input of farmers, landowners, business owners, or other affected parties.  All of these stakeholders and more would be greatly impacted should the rule move forward.  They would find great difficulty building or expanding their businesses, farm operations, or manufacturing activities—potentially on their own land. 

Since its proposal last year, many states and local governments have weighed in on the rule’s unfavorable consequences to their various jurisdictions, especially in completing infrastructure projects like roads, bridges, and transmission lines.  This flawed rule is opposed by at least 32 states, cities large and small, counties, towns, and townships.   

The nation’s governors have been quite pointed in their assessments as well.  Here’s a sampling of their comments from the many letters and formal comments they have sent the Obama administration since the spring of 2014:

  • Wyoming Governor Matt Mead: “The EPA and Army Corp of Engineers have overstepped with this proposed rule, ignoring state sovereignty and more than 100 years of law.  This is in essence another regulatory power grab of unprecedented magnitude.  The proposal should be withdrawn.”
  • Oklahoma Governor Mary Fallin: “This proposal makes the development rights of Oklahomans more ambiguous, rather than providing the common sense and clarity necessary for our citizens.  If the current proposal moves forward, it will harm development, cause construction delays of critical infrastructure, and burden our farmers and ranchers.”
  • North Dakota Governor Jack Dalrymple: “As written, this proposed rule would drastically expand the EPA’s authority to include virtually all surface water, including seasonal streams, ponds and dry ditches.  It is a clear example of government overreach and it’s unworkable for our farmers, ranchers and other landowners.”
  • Iowa Governor Terry Branstad: “State of Iowa leaders care deeply about improving water quality and that is why we are so concerned about that this Federal rule, which is a one-size-fits-all approach that will create unnecessary barriers for the advancement of conservation, water quality and economic development projects throughout the State of Iowa.”
  • North Carolina Governor Pat McCrory: “Such dramatic expansion of federal authority over a state matter must come from Congress, not a federal agency acting alone.  This proposed rule will impose burdensome and overreaching regulations, hindering the work and livelihood of North Carolina farmers, landowners and others.”

In addition to state governors, state legislators have also raised particular concern about the costs that would be passed on to those impacted by this flawed rule.  In formal comments to the EPA, members of the American Legislative Exchange Council—a group of one-third of the nation’s state legislators—noted the already exorbitant cost of obtaining Clean Water Act (Section 404) permits.  Private and public entities already spend an average of $271,000 and wait an average 788 days to obtain these Section 404 permits to complete projects.  By redefining WOTUS, notes ALEC, “the federal government would likely impose even greater burdens on farmers, businesses, local governments, and landowners than those that already exist.”

The idea of redefining WOTUS is nothing new.  Partisan attempts in the years liberals controlled the House of Representatives were turned back by bipartisan opposition.  The WOTUS rule is another clear example of a disturbing pattern of an Imperial Presidency seeking to use executive action while ignoring Congress.

This week the House will consider the Regulatory Integrity Protection Act (H.R. 1732).  This bill, authored by House Transportation & Infrastructure Committee Chairman Bill Shuster, would give the EPA 30 days to withdraw the current flawed rule and charge the agency with developing a new proposed rule.  This bill upholds the integrity of the federal-state partnership to regulate the nation’s waters by preserving existing rights, and requires EPA and other agencies to perform real outreach and consultation with stakeholders and those affected by the rule.  A veto threat already issued by the White House on the bill is further proof of its determination to seize more power, federalize all waters, and regulate land use around the country.

The House’s effort will move ahead despite this veto threat and will demonstrate a bipartisan majority to slow down this flawed EPA overreach.  By fixing a flawed process and working with state and local governments and stakeholders, the EPA and other agencies might find the clarity they seek for enforcing the Clean Water Act—and do so without wrecking our economy, trampling on existing rights, and significantly increasing stakeholder costs.