Morgan Griffith on WOTUS

From U.S. Representative Morgan Griffith, R-VA-9, editorial comment below: 

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No to WOTUS Rule

In January, the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (the Army Corps)’s published a final Waters of the United States, or WOTUS, rule. This rule is scheduled to take effect on March 20^th. It makes significant changes to expand the federal government’s authority to regulate any body of water.

Using sweeping terms to define millions of acres, the rule places enormous burdens on private property owners, creating uncertainty for Americans.

This new rule arguably gives the EPA and Army Corps the ability to regulate a medium sized mud puddle in your yard. When building a fence on their land, Americans shouldn’t need a team of attorneys to navigate federal regulations.

The Obama administration proposed a similar rule. I have always opposed this flawed regulatory approach.

As soon as the final Biden rule was published, I co-sponsored House Joint Resolution, H.J.Res.27, to terminate this rule through the Congressional Review Act, which provides a mechanism to overturn regulations.

I voted for H.J.Res.27 on March 9th, which passed 227-198.

The Senate must also pass the resolution in their chamber. I think the Senate is likely to pass this resolution.

However, the President must sign the resolution into law. I do not foresee that happening.

As an aside, I have always thought this part of the Congressional Review Act was illogical because it takes both houses of Congress and the President to pass a bill, but an unelected bureaucracy working for the president can pass regulations on their own. The elected Congress ought to be able to disapprove with a mere majority.

Since that is not currently the law, the fight against this bad policy turns to the courts.

After the rule was published in January, Texas filed a lawsuit to stop the rule. The lawsuit argues that the federal agencies tasked with implementing this rule, “unconstitutionally and impermissibly expand their own authority beyond Congress’s delegation in the Clean Water Act—intruding into state sovereignty and the liberties of the states and their citizens.”

I agree with the theory put forward in the Texas lawsuit.

In February, Virginia’s Attorney General Jason Miyares filed a similar lawsuit against the EPA and Army Corps. He did so along with 23 other states.

I support Attorney General Mirayes joining the lawsuit on behalf of Virginia as landowners in the 9^th District and around the state shouldn’t have to worry about the federal government policing rivulets or medium sized mud puddles.

As the Farm Bureau said, farmers are worried about noncompliance after doing something as simple as plowing their fields.

WOTUS sounds likes big brother has reared its ugly head.

Recognizing the negative effect this rule will have on thousands of small businesses, multiple business groups like the National Cattlemen’s Beef Association (NCBA) and the U.S. Chamber of Commerce, filed their own lawsuit in February to challenge the Biden Administration’s WOTUS rule.

In their press release announcing their lawsuit, the NCBA Policy Vice-Chair Gene Copenhaver of Washington County, Virginia, stated, “My cattle operation in southwest Virginia has a creek that only carries water after large storms. Under this WOTUS rule, we could be subject to complex federal regulation.”

That being said, this all may soon be a moot point.

The Biden Administration went forward with their new WOTUS rule despite the fact that there is an impending Supreme Court ruling in Sackett v. EPA, which is expected to provide a plain, unambiguous, meaning of the law upon which the WOTUS rule is based.

In the 2006 U.S. Supreme Court case Rapanos v. United States, which challenged federal jurisdiction to regulate isolated wetlands under the Clean Water Act, Justice Kennedy created the “significant nexus” test. In determining what constituted waters of the United States, this test had two parts: First, there must be a connection to a downstream waters of the U.S. Second, the area in question must have an effect on the chemical, physical, or biological integrity of traditional navigable water. 

Many have criticized the “significant nexus” test as being too vague and that the expansive language encourages regulators to interpret the definition of WOTUS as increasingly broad.

While the Trump administration did not utilize the test, instead opting for a narrower definition, the Obama and Biden Administrations both used the “significant nexus” test when defining WOTUS.

If the Supreme Court rules that the significant nexus test is not valid or changes it in a significant way, the Biden Administration rule will be void and they will have to start the process all over again.

If you have questions, concerns, or comments, feel free to contact my office. You can call my Abingdon office at 276-525-1405 or my Christiansburg office at 540-381-5671. To reach my office via email, please visit my website at www.morgangriffith.house.gov.

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Editorial comment: We as a nation discussed this and rejected it more than ten years ago. We need some sort of permanent rule that, when a bad idea has been soundly defeated once, it must be substantially changed before anyone in any government position is asked to bother about it again. Anything that sounds similar to that bad old UN Agenda 21 needs, for a start, to be automatically blocked from further consideration. (Yes, this is out of UN Agenda 21, currently circulating under the name Agenda 2030. It's still a power grab and it still needs to generate deep budget cuts for the UN as well as fines for anyone sponsoring its bad ideas in the US.)

We need to protect the quality of water in North America, and Congressman Griffith could have been more vigilant about that last year. However, the way to protect the quality of water is not by enacting huge sweeping power grabs, just as the way to prevent murder is not by putting everyone in a padded cell. We assume that people are not going to commit murder until convinced that they are, and then try to keep those people off the streets. We should likewise educate people about what damages the water supply, assume that people are not going to commit the crime of poisoning the water supply until convinced that they're doing it, and then get those people away from access to the water supply. 

Twelve years ago, corporate interests were squealing for "cap-and-trade" policies that called for (unenforceable) micromanagement of small air polluters like backyard grills in exchange for tolerance of large air polluters like coal-burning plants. We need a policy that reverses this, that requires large polluters to be dealt with first. 

We do need to recognize that poisoning other people's air, water, or food is a violent crime against persons. When people spray "herbicides" on their lawns, they are violating other people's bodies; they are making their own families ill, they may well be making their neighbors' son "non-binary." They need to be called to account for that. At the very least they need to forfeit their claim on the land they've polluted, both in order to compensate the affected neighbors, and in order to make sure they will have no chance to pollute the land again. 

But land and power grabs, which are all about profits for individuals in high positions and do nothing to benefit the citizens, should be recognized as non-starters whenever they are proposed in the legislature. That much Congressman Griffith is doing, and I believe he's representing us well.