Republican lawmakers on the House Water Resources and Environment Subcommittee described the Biden administration’s Waters of the United States rule as an example of federal agency overreach at a Feb. 8 hearing of the Transportation and Infrastructure Committee unit.
The hearing was part of a larger GOP effort to overturn the Biden administration final WOTUS rule released on Dec. 30. Led by committee Chair Sam Graves (R-Mo.), 150 Republicans have signed on to a Congressional Review Act resolution to void the regulation expands U.S. water bodies protected under the Clean Water Act.
The debate over what waters should be federally protected is contentious and long-running. A coalition of construction and small business groups that includes the American Road and Transportation Builders Association, Associated General Contractors of America and Associated Builders and Contractors, filed a lawsuit Jan. 18 challenging the Biden rule.
Subcommittee Chairman David Rouzer (R-N.C.) said that not only is the final rule itself problematic, but also that its release now could result in a bureaucratic nightmare—with the U.S. Supreme Court yet to issue a ruling in a WOTUS challenge, Sackett vs EPA, set to determihe how to define U.S. waters that fall under federal protection. “It would be common sense to pause and wait and see what the Supreme Court decides before jamming this through now,” Rouzer said in his opening statement.
Rep. Rick Larsen (D-Wash.) the Transportation and Infrastructure Committee’s top Democrat, said that the Biden administration rule includes “significant improvements and exemptions requested by stakeholders to address legitimate concerns over uncertainty and ease compliance.”
If the Republican resolution was adopted, agencies could be blocked from helping “stakeholders comply with any new jurisdictional test that might be announced by the Supreme Court. If that were the case, [they] can be left with invalidated rulemaking and a framework for a new judicially led test, but no guidance on how to apply that test in the field. In my view, that's the exact opposite of certainty and a big mistake.”
A Congressional Review Act resolution would need approval from both the House and Senate as well as a presidential signature, which is unlikely.
Several witnesses at the hearing described challenges they would face in complying with the Biden rule.
Mark Williams, environmental manager at Luck Companies, testified on behalf of the National Stone, Sand & Gravel Association, which also joined the coalition lawsuit challenging the rule.
“EPA claims this rule change is needed because so many waters are unprotected, but that is not true: states and local governments have rules that effectively manage these resources, and the pre-2015 regulatory structure is currently in place,” he said. The Biden administration rule ultimately “would disrupt the supply of aggregates to our biggest customers, which are government agencies; thus, affecting highway programs, airports and municipal projects.”