February 27, 2023
The Honorable Tom Carper The Honorable Shelley Moore Capito
Chairman Ranking Member
Committee on Environment and Public Works Committee on Environment and Public Works
United States Senate United States Senate
Washington, DC 20510 Washington, DC 20510
The Honorable Sam Graves The Honorable Rick Larsen
Chairman Ranking Member
Committee on Transportation and Infrastructure Committee on Transportation and Infrastructure
U.S. House of Representatives U.S. House of Representatives
Washington, DC 20515 Washington, DC 20515
Dear Chairman Carper, Ranking Member Capito, Chairman Graves, and Ranking Member Larsen:
As organizations representing a broad range of sectors from agriculture, energy, transportation infrastructure, construction and real estate, manufacturing, mining, recreation, chemical production, state departments of agriculture, and many other job creators, we urge support for the Congressional Review Act resolutions of disapproval of the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) 2023 revised Waters of the United States (WOTUS) regulation.
Every sector of the U.S. economy – from small businesses and farmers, to manufacturers and homebuilders – depends on a clear, predictable, and transparent WOTUS rule so they can protect the environment, operate with certainty, and create jobs in their communities. Continual revisions, remands, and reintroductions of WOTUS definitions only sow confusion and ultimately dissuade future investment.
The Congressional Review Act provides an important oversight tool for Congress to ensure that agency rules are consistent with Congressional intent and authority. The new definition of WOTUS exceeds Congressional authority in multiple respects, ignores recent Supreme Court caselaw interpreting the Clean Water Act, and will be impossible to implement consistently in the field.
Unfortunately, the new WOTUS rule will hinder economic growth and development and make it more expensive to invest in U.S. infrastructure and businesses. This rule lacks definitions for key terms, uses vague and conflicting examples, and doubles down on an expanded and subjective “significant nexus” test. It complicates an already complex process without corresponding environmental benefits beyond what the current regulations already provide. Small businesses and landowners will be forced to spend tens of thousands of dollars to hire consultants and lawyers simply to determine whether there is federally jurisdictional water on their property and if they need a federal permit. Delays created by regulatory uncertainty, plus increased permitting and mitigation costs, will make it more difficult and expensive to meet our nation’s ambitious infrastructure goals, grow food, produce energy, and provide clean drinking water.
Finally, the United States Supreme Court is currently considering Sackett v. EPA, a case that could have significant ramifications for the scope of WOTUS regulations. Despite requests by Members of Congress and the regulated community to delay any new regulation until that case is decided, EPA and the Corps disregarded this commonsense request and prematurely finalized yet another complex rule that lacks durability. The Court’s decision in Sackett could render substantial portions of the final rule non-applicable and irrelevant – and require yet another WOTUS rule.
The undersigned organizations appreciate your attention to this issue and urge Congress to pass these resolutions of disapproval of the 2023 WOTUS rule in order to keep the current regulatory definitions in place.
Agricultural Retailers Association
American Exploration & Mining Association American Exploration & Production Council American Farm Bureau Federation
American Fuel & Petrochemical Manufacturers American Iron and Steel Institute
American Petroleum Institute
American Road & Transportation Builders Association American Society of Golf Course Architects
American Soybean Association Associated Builders & Contractors
Associated General Contractors of America Club Management Association of America Corn Refiners Association
Essential Minerals Association
Florida and Texas Sugar Cane Growers
Golf Course Builders Association of America
Golf Course Superintendents Association of America Independent Petroleum Association of America Leading Builders of America
Liquid Energy Pipeline Association National Association of Home Builders National Association of Manufacturers National Association of Realtors
National Association of State Departments of Agriculture National Council of Farmer Cooperatives
National Club Association
National Corn Growers Association National Cotton Council of America
National Federation of Independent Business National Mining Association
National Multifamily Housing Council National Oilseed Processors Association National Pork Producers Council
National Rural Electric Cooperative Association
National Stone Sand & Gravel Association
RISE (Responsible Industry for a Sound Environment) Southeastern Lumber Manufacturers Association Texas Wildlife Association
The Fertilizer Institute Treated Wood Council USA Rice Federation
US Chamber of Commerce