Letter to Hon. Michael Regan, Administrator of Environmental Protection Agency and Jaime Pinkham, Acting Assistant Secretary of the Army for Civil Works - Lucas, Western Caucus: Return to Obama-era WOTUS "Misguided' & "Out of Touch'

Letter

Dear Administrator Regan and Acting Assistant Secretary Pinkham:

We write to you today greatly dismayed by the Environmental Protection Agency (EPA) and
U.S. Army Corps of Engineers' decision to remand the 2020 Navigable Waters Protection Rule
(NWPR), which finally provided certainty and relief for rural America. We are also discouraged
by your recent actions taken to reopen the definition of the "waters of the United States." These
steps demonstrate a misguided and out of touch approach toward addressing the needs of local
communities across the country. The NWPR was an immense step forward in rectifying the
regulatory overreach that was attempted in 2015, and your agencies' vague announcement and
opaque process fails to ensure our communities will not -- once again -- be subject to further
uncertainty and government overreach.

The 2015 Waters of the United States rule (WOTUS) promulgated by then-President Obama and
Vice President Biden was a drastic land and water grab that sought to give unprecedented power
to unelected bureaucrats in Washington, D.C. at the expense of farmers, ranchers, small business
owners, and the American people. Under this rule, the EPA could fine farmers and ranchers
thousands of dollars if they simply rotated from one crop to another on their own land without
first gaining permission from the federal government. In an unprecedented expansion of the
definition of "waters of the United States," it asserted categorical jurisdiction over typically-dry
channels and a variety of intrastate, non-navigable, isolated waters based on a faulty new
interpretation of the term "significant nexus.". This radical escalation of federal agencies' nearly
unlimited authority to regulate any pond, puddle, ditch, stream, or creek threatened the very way
of life of our constituents -- and any attempt to revert to similarly restrictive policies that
undermine existing stewardship efforts will only do the same.

Our farmers, ranchers, landowners, and small businesses have demonstrated a deep commitment
to stewarding our waterways and lands, which is why this radical overreach was met with
bipartisan opposition and concern that was even echoed by Administrator Regan during his
confirmation process. During both a U.S. House of Representatives hearing and Senate
confirmation hearing, Administrator Regan stated respectively, "We don't have any intention of
going back to the original Obama WOTUS," and "We are not going to pull a rule off the shelf,
especially after we've learned so much over the years." Unfortunately, your agencies' actions
only point to seeking to do exactly that -- dusting off the Obama-Biden WOTUS rule to
drastically expand the jurisdiction of the federal government over non-navigable waters, leaving
our nation's farmers, ranchers, and rural communities in significant legal uncertainty.
In addition to earning bipartisan opposition in Congress, the Obama-Biden WOTUS rule was
challenged by 31 Democratic and Republican Attorney Generals who declared the rule exceeded
the statutory authority of the Clean Water Act (CWA) and violated the Administrative Procedure
Act. They were right and two federal courts granted preliminary injunctions on the
implementation of the rule, with one court declaring it violated both laws.

In response to this unconstitutional and reckless failure of federal policy, the NWPR was
promulgated in partnership with states and local communities to provide clear, commonsense
guidance defining what waters are subject to federal jurisdiction under the CWA. Through this
rule, the Trump Administration eliminated the precarious "significant nexus" standard set by the
Obama-Biden WOTUS rule which was at the root of the confusion and uncertainty that plagued
this poor policy. By clearly and directly identifying "waters of the United States" in six
categories and making further clarifications of the definitions of tributaries and adjacent
wetlands, the NWPR has set a comprehensible and successful standard for federal water policy
while continuing to provide protection for our waterways and environment. Moreover, it is
currently in effect in all 50 states, and all unwarranted attempts to force injunctions on the rule
have been struck down by the courts -- something that could never be said of the Obama-Biden
WOTUS rule due to its illegality.

Confusion, regulatory uncertainty, and litigation have surrounded the scope of federal authority
of our nation's navigable waterways for decades. With your recent actions, the Biden
Administration is trampling upon this progress and further jeopardizing rural Americans'
confidence that this Administration is working in their best interest. Therefore, we request
answers to the attached questions by July 30, 2021.

Rural communities in the West and across the country are dedicated to clean water and do not
deserve to be punished by far-reaching, burdensome federal regulations. We look forward to
your thorough and prompt responses to these important questions.

Sincerely,