Nov 03, 2015 - 2:15pm

What Senators Need to Know About EPA’s Water Rule, and Why They Should Stop It


Senior Editor, Digital Content

The Senate is taking up legislation, S. 1140, to block EPA from implementing its flawed Waters of the U.S. (WOTUS) rule, which will expand the agency’s authority to nearly every body of water in the United States.

EPA’s regulatory overreach is so outrageous that hundreds of local government and business organizations back the bill.

In a letter to senators asking them to vote for the bill, the U.S. Chamber wrote:

The fate and interpretation of the final WOTUS rule is now in the hands of the courts, again, which means the regulated community is right back where it has been for nearly a decade—without any certainty of the scope of federal jurisdiction over water features and local land uses. Business owners in all sectors of the economy will be affected by this regulatory uncertainty, which is certain to chill the development and expansion of large and small projects across the country.

It is critical that the Senate take up and pass S.1140 and that Congress direct the EPA and COE to withdraw the flawed final WOTUS rule and start the rulemaking process over

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​For a refresher on WOTUS and its unprecedented expansion of federal regulatory power, here are five Above the Fold posts to get up to speed:

1. “Full Stream Ahead: Why EPA’s Water Rule Goes Too Far

Inside the 299 pages of regulations, definitions, explanations, and justifications for the rule, “adjacent” waters now under federal regulatory authority “include wetlands, ponds, lakes, oxbows, impoundments, and similar water features” that are “in the 100-year floodplain and that are within 1,500 feet” (five football fields) of a navigable water. The entire body of water is “adjacent” even if only a portion of it falls within the 100-year floodplain or within 1,500 feet of a navigable water.

While EPA and the Army Corps claim that WOTUS clarifies what waters are under federal jurisdiction, in agriculture's case, nothing is clarified.

2. “What is the Legal Case Against EPA’s Water Rule?

The U.S. Chamber, the National Federation of Independent Business, the Portland Cement Association, the Tulsa Regional Chamber, and the State Chamber of Oklahoma filed suit to stop the new Waters of the U.S. (WOTUS) which dramatically expands the definition of federally-regulated "navigable waters" covered by the Clean Water Act.

They make the case that the water rule gives the federal government unprecedented and unconstitutional regulatory authority over nearly every body of water in the United States and undercuts state and local government sovereignty.

3. “A Wyoming Rancher’s Case Shows Why So Many Businesses Are Worried About EPA’s Water Rule

Wyoming rancher Andy Johnson wanted to build a pond on his property for his cattle. He got the necessary state permits and did it. Cattle now drink from the pond, and birds and fish call it home.

But Johnson didn’t ask federal officials if he could build the pond. EPA came along and told him he had to fill it in. Johnson refused and is being fined $37,000 per day by the agency.

Johnson’s fight with the federal government illustrates why there has been such outcry over EPA’s new water rule, the Waters of the U.S. (WOTUS)—a rule that extends federal jurisdiction over nearly every body of water in the United States.

4. “How 4 Industries Will Get Soaked by Federal Water Rule

For farmers, they fear they “may not be able to weed and feed your lawn, spray for bugs, landscape with treated lumber and wood chips, fill in a low area with soil, or even dig a hole without” a federal permit.

For home builders still recovering from the Great Recessions’ housing market collapse, the new water regulations will mean added costs and uncertainty. As a Missouri home builder told the House Small Business Committee, “Builders would face new, costly delays just waiting for the agencies to determine if a road ditch is a ‘Water of the United States.’”

They're not alone. From retail stores to gravel companies to railroads, many other industries will be harmed by this federal overreach.

5. “EPA Has Created a Massive Regulatory Fiasco

The massive new infrastructure requirements that are at the heart of the Clean Power Plan will be complicated and delayed by the expanded number of Clean Water Act permits required by the WOTUS rule. In addition to the cost of applying for federal permits, infrastructure developers will have to pay mitigation costs for wetlands restoration, which often approach or exceed all other project costs.

Tell Congress to Stop the EPA's Water Rule

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About the Author

About the Author

Sean Hackbarth
Senior Editor, Digital Content

Sean writes about public policies affecting businesses including energy, health care, and regulations. When not battling those making it harder for free enterprise to succeed, he raves about all things Wisconsin (his home state) and religiously follows the Green Bay Packers.