House Votes to Sink Water Rule, Giving President Chance to Live Up to His SOTU Rhetoric

Jan 13, 2016 - 1:15pm

Senior Editor, Digital Content


President Barack Obama delivering his 2016 State of the Union address.

In his final State of the Union speech, President Barack Obama told Congress, “There’s red tape that needs to be cut.”

Everyone agrees on that, and the House of Representatives gave the president a chance to turn those words into action by voting to ditch his administration’s overreaching Waters of the United States (WOTUS) rule.

When President Obama travels to Nebraska today, waiting for him in The Omaha World-Herald is an op-ed by Speaker of the House Paul Ryan (R-Wis.) on why WOTUS is regulatory red tape run amok:

Allegedly to protect the water supply, the Environmental Protection Agency has rewritten a long-standing regulation so that the EPA can micromanage everyone’s use of their own land, including that of farmers and ranchers.

It’s another example of Washington bureaucrats sticking their nose where it doesn’t belong. As the president arrives in Omaha to tout how his policies have helped the state, the House of Representatives will vote, and send to the president’s desk, a bill to reject this rule, which has left so many Nebraskans out to dry.

If they can’t control the water on their land, farmers, ranchers and cattlemen can’t grow their crops or feed their livestock. And precisely because farmers and ranchers — and their elected representatives — know the needs of their land best, the states have long had primary authority over water that flows within their boundaries.

The Clean Water Act, passed in 1972, allows the federal government to regulate main waterways to limit pollution. But just a few months ago, the EPA’s rule expanded the definition of “main waterways” to include all adjacent bodies of water, no matter how small. In other words, streams, drainage ditches and ponds — even those on private property — are now subject to the whims and aggressions of Washington bureaucrats.

These consequences are not hypothetical. Real people have already suffered at the hand of WOTUS. Andy Johnson of Fort Bridger, Wyoming, was fined $37,500 a day by the EPA for building a pond on his land to water his horses, even though he had obtained state permits to do so. John Duarte of rural Tehama County in California was told that he broke the law simply by plowing his land. He was ordered to cease and desist immediately. “The Corps and EPA aren’t trying to micromanage farmers. They’re trying to stop farmers,” Duarte said. “They’re simply trying to chase us off of our land.”

And this could be just the beginning. Small businesses could pay steep fees just to use water on their property or to get high-priced lawyers to help them navigate multiple permitting processes.

Right now, the federal courts are determining the water rule's legality. Last year, a judge issued a nationwide stay keeping EPA from implementing the rule until legal questions were settled, but this could take years. As the U.S. Chamber explained in a letter to House members, this situation is generating uncertainty for farmers, ranchers, and other businesses:

As long as the WOTUS rule remains on the books, businesses of all sizes, as well as state and local governments, will suffer the regulatory uncertainty from the rule itself and from the ongoing litigation.

Last year, the Senate voted to overturn WOTUS.

Maybe President Obama will have a change of heart, not veto the bill, and live up to his own words. That would be a relief.

If you need to catch up on WOTUS, 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.

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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.