Wicker: Water Rule Defies Americans’ Concerns, Limits on Federal Power

Administration’s Overreach Could Have Far-Reaching Consequences

June 8, 2015

In April of last year, the Environmental Protection Agency (EPA) and the Army Corps of Engineers proposed a rule to redefine the “waters of the United States” (WOTUS). The new definition would give the agencies unprecedented authority to regulate streams, wetlands, ponds, and ditches under the “Clean Water Act.” In other words, Washington bureaucrats would have more power to intrude into Americans’ lives and private property without proof of meaningful environmental benefits.

Late last month, EPA and the Corps of Engineers released the final WOTUS rule, despite widespread concerns from state and local governments, farmers, small business owners, and landowners. The decision came just days after a New York Times article reported that EPA’s tactics to gain support for the rule could have violated federal lobbying law and greatly influenced the more than one million public comments the agency received.

A Threat to Property Rights

As a member of the Environment and Public Works (EPW) Committee, I have closely monitored the Obama Administration’s overreach and continue to oppose it. A broad and subjective definition of the water that EPA can regulate puts property owners at risk of added costs, fines, legal battles, and unnecessary permitting requirements. The Supreme Court has already addressed the scope of federal jurisdiction under the “Clean Water Act,” twice ruling in favor of a narrow interpretation of the law. This latest unilateral expansion of federal control is likely to end up in the courts as well.

EPA insists that the final WOTUS rule contains helpful exemptions, but a closer look reveals that much more clarity is needed. For example, the rule exempts water involved in common farming activities, but water in tile drains could still fall under EPA’s purview. So could erosion features on farmers’ fields, since the rule fails to put proper limits on what constitutes a tributary.

Swift Congressional Action, Oversight

Lawmakers from both political parties are committed to stopping EPA’s power grab. I am a co-sponsor of a bipartisan bill requiring EPA and the Corps of Engineers to revise the WOTUS rule in a way that protects the rights of farmers, ranchers, and landowners while still preserving our water resources. EPW Chairman Jim Inhofe (R-Okla.) has pledged to move the legislation, titled the “Federal Water Quality Protection Act,” through the committee process this summer.

The EPW Committee also continues to execute its oversight role, holding five hearings on the proposed WOTUS rule this year. In each hearing, the message was the same: This ruling could have serious and far-reaching repercussions on everything from property rights to economic development. Moreover, its flaws should be fixed and the concerns of Americans should be heard before EPA and the Corps of Engineers proceed. Instead, the rulemaking process has been rushed.

This is not the first time the Obama Administration has sought to extend its executive reach. EPA has drummed up a litany of costly, job-killing regulations, including an ozone rule that would drastically increase Americans’ energy bills. Reining in this regulatory onslaught remains a top priority, and challenging the WOTUS rule is an integral part of this mission.