The Biden administration's new “waters of the U.S.” rule came under immediate criticism Friday from farm groups and their GOP allies in Congress, who said it could expand federal jurisdiction over agricultural lands.
They also reiterated their stance that the administration should have waited for a pending Supreme Court ruling before finalizing the new definition of what land and water features are regulated under the Clean Water Act.
The rule released Friday by EPA and the Army Corps of Engineers preserves longstanding exemptions for farming activities but rolls back an exclusion for prior converted cropland that was a feature of a now-repealed 2020 rule issued by the Trump administration. Ephemeral streams, which flow in response to precipitation, also are protected under the new rule; the 2020 rule excluded them from regulation.
“Simply recognizing long-standing agriculture exemptions that have been too narrowly applied for decades does not make up for, once again, plunging our rural communities into ambiguity,” said Pennsylvania GOP Rep. Glenn "GT" Thompson, who will chair the House Ag Committee in the next Congress.
Senate GOP Whip John Thune, R-S.D., called the new rule a “thinly veiled land grab.” Washington GOP Rep. Dan Newhouse, who chairs the Congressional Western Caucus, called the rule “yet another bureaucratic attack on rural America.”
The top Republican on the Senate Environment and Public Works Committee, Shelley Moore Capito of West Virginia, said the rule would subject more infrastructure projects to "federal permitting requirements and adding more bureaucratic red tape."
The Waters Advocacy Coalition, which includes groups representing agriculture, energy, infrastructure, construction and real estate, said in a statement that the Biden administration "failed to pay attention to the input they received during their public comment process, as well as their regional roundtables on the proposed rulemaking.
“Instead, the rule’s reliance on vague terms will make it very difficult for any business or individual trying to comply with the Clean Water Act (CWA)— let alone the many small businesses that we represent.”
The statement also noted that the Supreme Court ruling “could negate (or render irrelevant) significant elements of this WOTUS rule, which will create even more confusion for landowners and businesses throughout the country.”
The coalition’s members include the American Farm Bureau Federation and some commodity groups.
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Chandler Goule, CEO of the National Association of Wheat Growers, said his group was “deeply concerned that the EPA and U.S. Army Corps rushed to get this revised definition out prior to the end of the year instead of waiting for the decision in the Sackett case before the Supreme Court.”
Mary-Thomas Hart, chief counsel for the National Cattlemen's Beef Association, said the rule was a "far cry from the regulatory uncertainty" provided by the 2020 rule.
Environmental groups, however, welcomed the new rule’s release.
“It’s a smart move to take this off the books,” Jon Devine, director of federal water policy for the Natural Resources Defense Council, said in a statement. “Eliminating the anti-science Trump ‘Dirty Water Rule’ and codifying longstanding practices is a sensible, good-government action. And this comes at a time when we’re seeing unprecedented attacks on federal clean water protections by polluters and their allies.
The National Wildlife Federation said the new rule reinstates water protections that existed prior to the 2020 rule.
The “new rule will help protect the streams, wetlands, rivers, and lakes people and wildlife depend upon from pollution and other threats,” said Jim Murphy, director of legal advocacy for NWF.
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