(Beyond Pesticides, March 17, 2023) The U.S. House of Representatives’ Republican majority voted on March 9 to overturn a Biden administration rule that expands the definition of and protections for the “waters of the United States.” The rule, Revised Definition of Waters of the United States, clarifies that thousands of wetlands, smaller streams, and other kinds of waterways are included under the Clean Water Act’s protection provisions. The overturning resolution now goes to the Senate, and is expected to be taken up very soon; President Biden has said he will exercise his veto power if it reaches his desk. Were that veto overridden, this rollback would put at greater risk the nation’s waterways, from all sorts of pollution, including the more than 90% of the nation’s rivers and streams that are contaminated with five or more pesticides, according to Beyond Pesticides 2020 coverage.
You can contact your U.S. Senators HERE to let them know you want them to support Clean Water by voting against legislation that undermines protection of our waterways.
The rules promulgated by EPA and other federal agencies to protect the nation’s waters arise primarily from 1972’s Clean Water Act (amended in 1977 and 1987). That act, although referencing various kinds of “waters of the United States” (WOTUS), does not actually define what that means. The interpretation of a definition has been an ongoing political kerfuffle for 15 years, according to Bloomberg Law, which asserts that the definition has is has been expanded and narrowed multiple times, depending on administrations.
Finalized in late December 2022, the rule is scheduled to go into effect on March 20. (See this Fact Sheet on the rule.) The Biden WOTUS rule, according to E&E News Greenwire, “would give federal protection to large waterways, like interstate rivers and streams and wetlands that are adjacent to them.” On the matter of which wetlands qualify for federal protection under the new WOTUS definition, the rule does not so much draw “bright-line rules” about, “for example, wetlands that are more than a specific number of feet from a jurisdictional water [being] not ‘adjacent.’” (The Obama WOTUS rule did draw such “bright lines” about federal jurisdiction.) Instead, “a more nuanced approach is required” because the impacts of a wetland on a larger waterway is variable with region, climate, and local hydrodynamics. The rule does say, “The agencies can state, based on nearly 45 years of implementation . . . that in a substantial number of cases, adjacent wetlands abut (touch) a jurisdictional water. . . . [O]n the whole, nationwide, adjacent wetlands are within a few hundred feet from jurisdictional waters.”
The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers, through the final rule, repeals the previous, Trump administration rule that scaled back water protections that had been in place with the Obama rule. Beyond Pesticides wrote about that in early 2020: “President Obama’s WOTUS, aka Clean Water Rule, has provided protections from pesticide runoff and other pollutants to millions of acres of wetlands and thousands of miles of streams. . . . The WOTUS rule was created to provide greater protections from pollution, and to ‘bring clarity to decades of political and legal debate over which waters should qualify.’ The rule included many smaller waterways and wetlands that function as recharge areas or tributaries to larger water bodies.”
Then, Republicans and industry/trade/business groups clamored loudly against the more-protective Obama administration definition of WOTUS. The same is happening today with the Biden rule, which the same general crew of opponents claim constitutes regulatory overreach that is “burdensome” to private enterprise, property rights, and — essentially — what they consider their “right” to pollute. This position ignores the reality of pollution of the nation’s water resources — not only the ubiquity of impacts, but also, the variety and extent of harms to human health, ecosystems, and biodiversity, as well as the disproportionate impacts of both water pollution and its sources on low-income communities and communities of color.
In bringing this to a House vote, Republicans employed the Congressional Review Act, which allows Congress to overturn final rules of federal agencies, and is typically used on recently enacted rules and during changes of administration (accompanied by a shift in majority control in the House or Senate). With their recently acquired House majority (222–213), Republicans were able to pass the measure to overturn the Biden WOTUS rule with a 227–198 vote.
Voting for the rollback were 218 Republicans (1 voted against); 197 Democrats voted against it (9 voted for); and 7 Democrats and 2 Republicans failed to vote. Democratic House members who voted to overturn the rule included Representatives Sanford Bishop and David Scott (GA), Jim Costa and Jimmy Panetta (CA), Angie Craig (MN), Henry Cuellar and Vicente Gonzalez (TX), Donald Davis (NC), and Jared Golden (ME); Brian Fitzpatrick (PA) was the one Republican who voted against the measure.
As this measure moves to the Senate, Democratic Senator Joe Manchin (WV) has already declared his support for it. The Associated Press notes that Senator Manchin is a “frequent Biden antagonist” who “represents an energy-producing state and frequently clashes with Democrats on environmental issues.” Given the Senate Democrats’ narrow majority (51–49), Senator Manchin’s defection, coupled with recent Senate absences of Senators Dianne Feinstein and John Fetterman for health reasons — if those absences continue — could pose a challenge for Senate Democrats, Bloomberg Law asserts.
Senator Manchin commented, echoing Republican and industry talking points, that the Biden rule “would interject further regulatory confusion, place unnecessary burdens on small businesses, farmers and local communities, and cause serious economic damage.” Republican Representative David Rouzer (NC), Water Resources and Environment Subcommittee Chair, commented to the Associated Press: “The EPA rule ‘needs to be repealed so Americans across the country are protected from subjective regulatory overreach making it harder to farm, build and generate economic prosperity.’”
The Biden Administration has countered that its clean water rule would actually responsibly guide business and agriculture, and that overturning the rule would generate more uncertainty. EPA, on its website, says that the “final rule establishes a clear and reasonable definition of ‘waters of the United States’ and reduces the uncertainty from constantly changing regulatory definitions that has harmed communities and our nation’s waters.”
The agency further notes, “The agencies developed this rule with consideration of the relevant provisions of the Clean Water Act and the statute as a whole, relevant Supreme Court case law, and the agencies’ technical expertise after more than 45 years of implementing the longstanding pre-2015 ‘waters of the United States’ framework. This rule also considers the best available science and extensive public comment to establish a definition of ‘waters of the United States’ that supports public health, environmental protection, agricultural activity, and economic growth.”
Meanwhile, litigation on the WOTUS definition sits with the U.S. Supreme Court (SCOTUS); a decision for the plaintiff, according to Earthjustice, “could gut the Clean Water Act.” The case, Sackett vs. EPA, was brought by Michael Sackett, an Idaho property owner who sued EPA over its ruling that he and his wife needed a permit to infill a wetland (and build a home on it) next to an Idaho lake, and were in violation of the Clean Water Act. The plaintiff has asked SCOTUS to determine whether a lower court applied the correct standards in its ruling for EPA, and whether EPA has authority over the Sacketts’ private property. The crux of the case re: the federal rule is whether (and which) wetlands meet the definition of “waters of the United States.” Plaintiffs were distressed by the December 30 announcement of the final rule — prior to a SCOTUS decision in the case.
Of course, industry interests have come out in force, filing many amicus curiae (friend of the court) briefs in support of the plaintiffs. Those entities include the U.S. Chamber of Commerce; conservative organizations the Cato Institute, Liberty Justice Center, and Americans for Prosperity Foundation; the National Federation of Independent Business; the National Association of Home Builders; the National Stone, Sand, and Gravel Association; 14 agricultural organizations; and a host of conservative, regional “legal foundations,” among others. In Jun 2022, Earthjustice filed an amicus brief on behalf of Native tribes seeking to defend existing water protections for waterways on which they depend for food, economy, and culture. A SCOTUS decision in the case is expected soon.
The organization American Rivers explains the stakes of the case well: “The Supreme Court decision . . . means more than just redefining the Clean Water Act. Siding with polluters would mean denying communities across the country access to clean water — a fundamental human right. If [SCOTUS] rules against the EPA, the drinking water of one in three people in this country will be at risk. Countless wetlands and streams across the country — vital for fish and wildlife habitat and flood protection for communities — are also at risk. For example, the Court could remove protections for 80% of streams in the Southwest alone. . . . [I]n the case of Sackett v. EPA, big polluters are arguing that [SCOTUS] should weaken the scope of the Clean Water Act. This means countless streams and wetlands all over the country would no longer be protected — and polluters could have free rein to use our nation’s waters as sewers once more.”
The support among business, industry, and agriculture groups for the SCOTUS plaintiff and the House vote on WOTUS (and Republican spin on it) lays bare the aims and determination of those who profit from polluting. The House resolution on WOTUS was introduced by two Republicans — Chair of the House Transportation and Infrastructure Committee Sam Graves (MO) and Representative Rouzer — and cosponsored by 170 others. The House website titles its press release on the vote “House Votes to Overturn Flawed, Overreaching Biden WOTUS Rule.” (The Senate resolution was introduced by Republican Senator Shelley Moore Capito [WV]).
Representative Graves commented in the press release: “American families, farmers, small businesses, and entire communities are suffering under the economic crises caused by the disastrous Biden policies of the last two years. The last thing they need is this Administration’s inexplicable decision to move the country back toward the overreaching, costly, and burdensome regulations of the past, which is exactly what this WOTUS rule does.” Representative Rouzer amped up the provocative language, saying, “President Biden’s new WOTUS rule is a nuclear warhead aimed squarely at our farm families, small businesses, homebuilders, every property owner, and entire communities because of its overreaching definition. Cloaked under the guise of clean water, all this rule does is expand the federal government’s control over states, localities, and private landowners, making it harder to farm, build, and generate economic prosperity.”
Earthjustice summarizes the case for this protective rule and its WOTUS definition: “[It] is based on vigorous science. The agencies that made the new rule reviewed hundreds of scientific articles when making this rule and worked through thousands of public comments to develop a framework for protecting our nation’s waters from industrial pollution. The rule is not perfect, but it is a crucial step toward restoring protection to a network of waterways that support healthy ecosystems, and economies. More than three in four people support stronger federal protections for our nation’s waters.”
Beyond Pesticides encourages members of the public to advocate strongly with their U.S. Senators to uphold the Biden WOTUS rule, which represents badly needed protection for the nation’s waterways, and the ecosystems, organisms, and people who depend on them — essentially, everyone and everything. Click HERE to take action by contacting your U.S. Senators.
Sources: https://apnews.com/article/biden-clean-water-manchin-republicans-epa-environment-1bb64abf01d910f4c4763ad49883a8cb and https://news.bloomberglaw.com/environment-and-energy/house-passed-water-rule-baits-bidens-veto-with-absent-democrats
All unattributed positions and opinions in this piece are those of Beyond Pesticides.
Support Lumiserver & Cynesys on Tipeee
Visit our sponsors
Wise (formerly TransferWise) is the cheaper, easier way to send money abroad. It helps people move money quickly and easily between bank accounts in different countries. Convert 60+ currencies with ridiculously low fees - on average 7x cheaper than a bank. No hidden fees, no markup on the exchange rate, ever.
Now you can get a free first transfer up to 500£ with your ESNcard. You can access this offer here.