Katie Britt and Shelley Capito lead challenge to Joe Biden’s Waters of the U.S. rule

U.S. Senators Katie Britt and Tommy Tuberville joined Sen. Shelley Moore Capito and all of their Senate Republican colleagues introduced a formal challenge to the Biden Administration’s Waters of the United States (WOTUS) rule through a Congressional Review Act (CRA) joint resolution of disapproval. If both Houses of Congress pass a resolution rejecting a federal regulation under the CRA, that regulation is effectively nullified.

This resolution comes after Joe Biden’s Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers announced a new rule in December 2022 repealing the Navigable Waters Protection Rule (NWPR), changing the definition of Waters of the United States in a way that will significantly expand federal regulatory authority over farmers, foresters, builders, developers, businesses, and even homeowners.

“The Biden Administration in two years has racked up more regulations than the Obama Administration did in eight years,” Sen. Britt said. “They’re continuing their red tape regime with yet another reckless rulemaking decision that would prioritize their leftwing political agenda at the expense of hardworking Americans. This type of job-killing overregulation would strangle Alabama farmers, cattlemen, manufacturers, energy producers, builders, landowners, and small businesses.”

“Alabamians have tended to our own land, waterways, and resources for generations, and we remain best positioned to preserve and utilize them for generations to come,” Britt said.

Sen. Shelley Moore Capito is the Ranking Member of the Senate Environment and Public Works (EPW) Committee.

“With its overreaching navigable waters rule, the Biden administration upended regulatory certainty and placed unnecessary burdens directly on millions of Americans,” stated Capito. “This Congressional Review Act resolution of disapproval will give every member of Congress the chance to stand with farmers, ranchers, landowners, and builders, and protect future transportation, infrastructure, and energy projects of all kinds in their states. I appreciate the widespread support we’ve received in both the Senate and House, and across the country, as we fight to place an important check on this misguided overreach from the Biden administration.”

As Senator Capito introduced the CRA resolution in the Senate, U.S. Rep. Sam Graves, the Chairman of the House Committee on Transportation and Infrastructure (T&I), simultaneously introduced an identical resolution in the House.

“As American families and businesses continue suffering under the economic crises caused by the disastrous Biden policies of the last two years, this Administration has inexplicably decided to move the country back toward the costly and burdensome WOTUS regulations of the past,” said Chairman Graves. “In an unnecessary drain on federal resources, the Administration clumsily put forward its rule before the Supreme Court has issued a ruling in the Sackett case, which will affect and alter what the Administration has put forward. Congress has the authority and responsibility to review onerous rules like this one handed down from the Executive Branch, and I hope our colleagues on both sides of the aisle will join in this effort to preserve regulatory clarity and prevent overzealous, unnecessary, and broadly defined federal power.”

Numerous industry leaders and stakeholders have issued statements supporting the effort to overturn this rule.

“As farmers, we want and need to protect the nation’s waters,” Alabama Farmers Federation President Jimmy Parnell said. “This rule muddies the water for property owners, will make conservation more difficult, and will create huge liabilities for farmers.”

American Farm Bureau Federation (AFBF) President Zippy Duvall said, “Farmers and ranchers are committed to protecting the land and water they rely on to grow food for America’s families. Unfortunately, the back and forth over water regulations threatens the progress made to responsibly manage natural resources. We appreciate Congressmen Sam Graves, David Rouzer, and Senator Shelley Moore Capito for introducing a joint resolution to use the Congressional Review Act to stop the new Waters of the U.S. rule from going into effect. Farmers deserve rules that don’t require a team of attorneys and consultants to identify ‘navigable waters’ on their land.”

The American Pipeline Contractors Association (APCA) said, “The American Pipeline Contractors Association is grateful for the introduction of this Congressional Review Act resolution and urges Congress to come together and swiftly overturn the new burdensome and unnecessary WOTUS regulations. There is widespread understanding in Washington that permitting reforms and regulatory overhaul are necessary to meet infrastructure goals and unlock the full potential of American energy, but this decision from the administration directly contradicts those goals. APCA urges the Biden administration to roll back this regulation as soon as possible and to instead work with Congress to undertake meaningful action toward reforming pipeline and general construction permitting processes.”

American Road & Transportation Builders Association Vice President of Legal & Regulatory Issues Nick Goldstein said, “The recent Waters of the United States definition from the Environmental Protection Agency (EPA) would add more delay and confusion to the delivery of critical transportation improvements. By muddying federal Clean Water Act jurisdiction, EPA’s regulation directly contradicts the bipartisan infrastructure law’s goal of improving the project review and approval process. That’s why ARTBA supports House and Senate legislation to rescind the WOTUS rule.”

Associated General Contractors of America (AGC) Vice President of Government Relations Jimmy Christianson said, “Senate Environment and Public Works Committee Ranking Member Shelley Moore Capito and House Transportation and Infrastructure Committee Chairman Sam Graves are right to express disapproval with the administration’s overreach and expansion of the waters of the United States regulatory program. AGC is disappointed that the agencies rushed through the sixth change in the requirements, in almost as many years, just as the U.S. Supreme Court is poised to decide on a related case. Employers try in good faith to keep pace with ever-shifting requirements that carry criminal as well as civil penalties for noncompliance.”

Energy Marketers of America (EMA) President Rob Underwood said, “The Energy Marketers of America (EMA) recognize the enormous impacts the Biden Administration’s ‘Waters of the United States’ rule will place on small business energy marketers. In large part, WOTUS will determine whether costly land use restrictions will be imposed on new building or expansion projects, such as adding renewable liquid fuel pumps and/or electric charging stations. EMA supports the joint resolution of disapproval under the Congressional Review Act on the Biden Administration’s WOTUS rule.”

Leading Builders of America CEO Ken Gear said, “Families in every state in the nation are facing housing affordability challenges. We are experiencing a severe shortage of homes that are attainability for working and middle-income families. A primary driver of this crisis is increasingly expensive land and development costs. These costs add tens of thousands of dollars to the cost of each home we build. Building workforce housing that is affordable when it can take years of costly litigation and red tape under the ambiguous Clean Water Act is nearly impossible. We need a WOTUS rule that sets clear parameters and allows for quick and efficient permitting decisions without the need for litigation or years of agency review. Make no mistake, the WOTUS rule is about affordable housing.”

National Cotton Council (NCC) National Cotton Council Chairman Ted Schneider said, “The NCC applauds the efforts of Congress through use of the Congressional Review Act to bring back certainty and transparency to the rules surrounding Waters of the United States. The Louisiana cotton producer reiterated that U.S. agriculture needs a WOTUS rule which ‘provides clarity and consistency, is not overly burdensome to farmers and landowners, and that can protect our nation’s water infrastructure.’”

National Federation of Independent Business (NFIB) Vice President of Federal Government Relations Kevin Kuhlman said, “America’s farmers, ranchers, developers, contractors, and other small businesses have been greatly affected by the ongoing changes to WOTUS standards. This overreaching final rule increases compliance burdens and uncertainty for small businesses as they wait to hear from the Supreme Court. Your leadership to repeal this burdensome rule is crucial for small businesses across America, and we look forward to working with you to reduce the regulatory and compliance burdens faced by small businesses.”

National Mining Association President and CEO Rich Nolan said, “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 Rural Electric Cooperative Association Senior Vice President of Government Relations, Louis Finkel, said, “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. We thank Ranking Member Capito and Chairman Graves for their leadership and for taking this important step that will help electric co-ops reliably keep the lights on at a cost that consumers can afford.”

National Utility Contractors Association Chief Executive Officer Doug Carlson said, “Utility construction projects need predictability to make project deadlines and contain costs. The Biden Administration’s repeal of the Trump Administration’s clean-up of the WOTUS rules is going to add unnecessary confusion and delays to this industry’s projects. Contractors will now be faced with more uncertainty when trying to comply with the new WOTUS rules, an outcome that will face even more confusion with a pending U.S. Supreme Court ruling on these regulations. The Biden Administration’s regulatory change was not needed, not at this time with so many infrastructure projects starting this year. NUCA strongly supports T&I Chairman Sam Graves and subcommittee Chairman David Rouzer’s resolution of disapproval to rescind this WOTUS rule change.”

The Power and Communication Contractors Association (PCCA) wrote: “The Power and Communication Contractors Association strongly supports the Congressional Review Act resolution introduced by Chairman Graves and Rep Rouzer, which would overturn the Biden administration’s ill-advised changes to WOTUS. PCCA members across the country are working tirelessly to expand access to high-speed broadband, modernize and strengthen our nation’s electric grid, and provide the essential workforce for these and many other critical infrastructure projects. However, burdensome federal regulations and policies have slowed work and jeopardize the goals set by the Biden administration to achieve universal access to broadband and a modern electric grid within the next decade. Instead of critical permitting reforms and similar regulatory updates, this decision rolls back positive changes made during the last administration. We commend the action Congress is taking to reverse this decision and urge the administration to work with Congress to develop a better standard that meets the needs of all Americans.”

The U.S. Chamber of Commerce said, “The U.S. Chamber of Commerce commends Chairman Graves, Chairman Rouzer, and the many other Members of Congress for their leadership in proposing a Congressional Review Act resolution for the Biden Administration’s Waters of the U.S. rule. America needs clear, less burdensome water policy so that we can permit and build for the future. We urge Congress to pass this important legislation in short order to ensure the immediate elimination of the Administration’s unnecessary, confusing, and legally problematic federal regulatory expansion, and to provide the certainty that businesses, landowners, and state and local governments need.”

USA Rice Federation Chairman, and a Mississippi rice farmer, Kirk Satterfield, said, “Rice farmers are committed to protecting our farms and the environment as we face tremendous pressures maintaining our nation’s food security, from high input costs to unfair trade competition, and everything in between. Cumbersome and overly vague regulations like the Biden Administration’s new WOTUS rule will further challenge our ability to produce rice safely and sustainably for consumers at home and abroad. USA Rice supports efforts in Congress to repeal this

The Republicans control the U.S. House of Representatives, but it will take bipartisan support for the resolution to pass the Senate.

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