What They Are Saying: Biden’s WOTUS Rule is an Attack on Rural America

Washington, January 3, 2023 | Amanda Fitzmorris (202-317-0098)

WASHINGTON, D.C. – Industry leaders and associations representing rural America released statements in response to the Biden Administration’s publishing of a final “waters of the United States” (WOTUS) rule that will negatively impact farmers, ranchers, and rural communities across the United States:

American Farm Bureau Federation President Zippy Duvall: “AFBF is extremely disappointed in the EPA and Army Corps of Engineers new Waters of the United States Rule. Farmers and ranchers share the goal of protecting the nation’s waterways, but they deserve rules that don’t require a team of attorneys and consultants to identify ‘navigable waters’ on their land. The back and forth over water regulations threatens the progress made to responsibly manage natural resources and will make it more difficult for farmers and ranchers to ensure food security for families at home and abroad.”

National Cattlemen’s Beef Association (NCBA)’s Chief Counsel Mary-Thomas Hart: “The latest WOTUS rewrite once again subjects cattle producers to unnecessary confusion and regulation. With the Supreme Court set to rule on the federal government's jurisdiction over water features, the agencies should have paused their rulemaking rather than charged ahead with a half-baked proposal that leaves producers with more questions than answers.”

National Stone, Sand & Gravel Association's President and CEO Michael Johnson: “The action taken by EPA and the Corps only adds to the confusion of an already unclear process that our members must deal with in order to provide materials crucial for infrastructure projects, like those in the recent bipartisan infrastructure law. Not waiting for the Supreme Court’s (SCOTUS) ruling before finalizing this rule expands the time and effort our members must spend navigating this punitive system. This was also done despite requests by a broad range of stakeholders, including NSSGA and over 250 bipartisan members of Congress, to delay a rule until the pending SCOTUS decision on Sackett v EPA is released. This rule purports to be a final withdrawal of the 2020 Navigable Waters Protection Rule but expands the reliance on the Significant Nexus test, which SCOTUS appears poised to limit or remove, as the test for whether a water is a WOTUS. The unnecessary agency actions are in direct contradiction to bipartisan calls to wait for the SCOTUS ruling, which will further waste taxpayer dollars, as the administration will likely have to write another rule – the fifth in a decade – once the ruling is finalized in the coming months.”

National Association of Home Builders (NAHB)’s Chairman Jerry Konter: “Rather than providing clarity and certainty for home builders and other affected stakeholders, this definition of WOTUS adds uncertainty and confusion to the regulatory process, raises housing costs and drastically increases federal overreach in the process. The rule makes it unclear whether the federal government will regulate certain roadside ditches, isolated ponds and channels that may only flow after a heavy rainfall. It is especially shortsighted and a waste of federal resources, given that the Supreme Court upcoming ruling under Sackett v. EPA is squarely focused on the legality of the agencies’ jurisdiction under the Clean Water Act. And with America in the midst of a housing affordability crisis, this needless regulation will only make it more difficult and expensive for single-family and multifamily developers to find the developable land necessary to produce the new affordable housing units this nation desperately needs. The Biden administration has declared a housing affordability crisis, but if the administration is truly interested in knocking down barriers to affordable housing, it will direct the EPA and Corps to keep from implementing this rule until the Supreme Court issues its ruling in the Sackett case.”

U.S. Chamber of Commerce’s Senior Vice President of Policy Marty Durbin: “If we are to meet our ambitious climate and infrastructure agenda, a consistent, predictable, and durable Waters of the United States (WOTUS) definition is foundational.  The Chamber and our members are concerned that the Phase 1 Rule will do quite the opposite and create more uncertainty and instability, especially as the Supreme Court moves toward deciding the Sackett case. We will carefully review the new rule with an eye to assessing whether it is consistent with all applicable legal requirements, including the appropriate scope of federal jurisdiction under the Clean Water Act. The business community urges EPA and the Army Corps of Engineers to pause before taking any additional steps that would further complicate infrastructure permitting decisions.”

Essential Minerals Association’s President Chris Greissing: “EMA members work to protect and steward water resources while providing the minerals needed for everyday life. A clear, efficient definition of WOTUS would enable them to continue to do so. Regrettably, the Biden Administration’s new water rule not only makes these efforts more difficult, but it also puts sorely needed mineral supply chains at risk and threatens to make food, housing, renewable energy technology, and virtually every product or service even more expensive for American families. We encourage the Administration to reconsider this final rule, and work with all parties involved to provide the clarity and efficiencies we’ve been missing for decades.”

National Federation of Independent Business (NFIB)’s President Brad Close: “We are disappointed that the EPA ignored NFIB’s call for the agency to wait while Sackett v. EPA is pending at the U.S. Supreme Court. America's small farmers, ranchers, developers, contractors, and other small businesses with water on their property have been affected greatly by the ongoing changes to WOTUS standards. This final rule further complicates compliance standards and increases uncertainty for small businesses as they wait to hear from the Supreme Court.”

National Association of Manufacturers’ Senior Vice President of Policy and Government Relations Aric Newhouse: “The EPA is unnecessarily rewriting critical permitting standards and tossing aside Supreme Court precedent in the process. This moving target frustrates efforts to expand domestic manufacturing and create well-paying jobs. Manufacturers cannot invest with confidence when the rules keep changing. Manufacturers need a sensible WOTUS proposal that provides permitting certainty and allows the industry to continue leading on environmental stewardship.”

Family Farm Alliance’s Executive Director Dan Keppen: "It is troubling to see the Biden Administration double-down on the significant nexus test after October’s oral argument in the Sackett case, during which the high Court seems inclined to do away with it. Significant nexus is a legally fragile test, created and signed onto by a single Justice in one Supreme Court case, 15 years ago. Yet, the new Biden WOTUS rule has been built on this precarious test. If, as expected, the Supreme Court strikes down the significant nexus test, the Biden WOTUS rule will certainly topple to the ground with it."

Agricultural Retailers Association’s President & CEO Daren Coppock: “We share the Administrator’s goal of a scientifically defensible, practical and predictable WOTUS rule.  However, it was counterproductive for EPA to rush this rule out the door when litigation pending before the Supreme Court may require changes.  Now there is no certainty for farmers or applicators until the Court rules in Sackett v. EPA and a strong likelihood of no certainty while EPA does this work a second time after the ruling. ARA will reserve judgement on the substance of the rule until we have had a chance to study it.  But the tactics of rushing it out the door with relevant litigation pending, and lobbing it over the transom on a Friday before a long holiday weekend, do not inspire confidence or trust.”

American Exploration & Mining Association’s Executive Director Mark Compton: “In so many ways, this new WOTUS rule misses the mark.  It will vastly expand the reach of the federal government without offering clarity to the regulated community.  Instead of waiting a few months for the Supreme Court’s Sackett v. EPA decision, publishing the rule now only accelerates the whipsaw action the agencies said they hoped to end when they started this process.  The irony is that this rule will undermine President Biden’s own carbon-reduction agenda by making it much more difficult for American miners to produce the minerals needed to build the electric vehicles, wind turbines, and grid-scale batteries that underpin that agenda.”

American Soybean Association’s President Daryl Cates: “Soybean growers are still reviewing the 514-page WOTUS rule, but we are disappointed to see up front that the rule will use either the ‘relatively permanent’ or ‘significant nexus’ standard to identify jurisdictional waters, which does not provide us the certainty we need to manage our lands and farms sustainably. And while we are pleased to see a number of longstanding agricultural exemptions included, we are concerned that the changes to the Prior Converted Cropland exclusion may have unintended consequences for our families and businesses.”

Associated Builders and Contractors’ Vice President of Regulatory, Labor and State Affairs Ben Brubeck: “By repealing the Navigable Waters Protection Rule’s commonsense definition of ‘waters of the United States’ and returning Clean Water Act enforcement to unpredictable, case-by-case determinations of jurisdiction, the Biden administration’s final WOTUS rule is a significant step back in establishing unambiguous water quality protections that provide clarity for contractors. This rule will delay critical infrastructure projects and raise costs for the construction industry and taxpayers without providing meaningful improvements to water quality."

National Mining Association’s President and CEO Rich Nolan: “Issuing this rule now – amidst calls from Congress and impacted stakeholders to await the Supreme Court’s ruling on the scope of the Clean Water Act – is a clear signal of the EPA’s intent to charge ahead with its own agenda regardless of the law or authority from Congress to do so. Given the exponential increase in demand for mined materials expected in the coming years, what the mining industry needs is a clear, consistent and predictable regulatory framework; instead, it is getting more confusion and uncertainty that will make it increasingly difficult and expensive to mine. The mining industry is committed to protecting our nation’s treasured water resources and we support regulatory efforts to achieve that end, but this rule is only about obstructing projects, not responsible regulation.”

National Association of State Departments of Agriculture (NASDA)’s CEO Ted McKinney: “The EPA’s latest rule on defining “waters of the United States” is a statement of federal overreach that ignores states’ authority to regulate intrastate water quality and the Clean Water Act’s statutory mandate for cooperative federalism. In turn, although we recognize EPA’s attempt at clarifying through a roster of exemptions, its rule ignores the voices of nearly all in American agriculture who have long been seeking clarity on this issue, especially regarding the debate over what is and is not a navigable water.”

National Rural Electric Cooperative Association’s Senior Vice President of Government Relations Louis Finkel: “EPA’s final rule expands the reach of WOTUS and creates substantial regulatory uncertainty for electric co-ops. It will further complicate and slow permitting for electric infrastructure projects, which are vital for ensuring energy affordability and reliability for American families and businesses.”

The Heritage Foundation’s Center for Energy, Climate, and Environment’s Senior Research Fellow for Environmental Policy and Regulation Daren Bakst: “The U.S. Supreme Court is due to release an opinion that should help shed light on a long-standing issue: what waters are regulated under the Clean Water Act. Despite the impending decision, on the last weekday of 2022, the Biden administration released a new final rule defining what it thinks are regulated waters. This move shows a complete disrespect for property owners who are already harmed by the existing confusion and the federal government’s long-standing overreach to regulate almost every water imaginable, and even dry land. This overreach has made it difficult to engage in even normal activities, such as farming and ranching. Instead of waiting to see what the court said, the administration decided it would create even more confusion by issuing a rule that will likely be rendered moot as soon as the Supreme Court issues its opinion.”


Congressional Western Caucus Members condemned the Biden Administration for publishing the rule ahead of the Supreme Court’s Sackett v. EPA decision. Click here to read more.

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