Opinion -- Graves Applauds Proposed Rule to Define Waters of the US

By Congressman Sam Graves’ office

Congressman Sam Graves (MO-06), Chairman of the House Committee on Transportation and Infrastructure, Monday commended the Trump Administration for its proposed rule to define Waters of the United States (WOTUS) under the Clean Water Act (CWA) in a manner that will provide much needed clarity and regulatory certainty for farmers, businesses, infrastructure builders, and communities throughout the United States. 

The Administration’s WOTUS rule, developed by the Environmental Protection Agency and the United States Army Corps of Engineers, aligns with the Supreme Court’s 2023 Sackett decision, which appropriately recognized that there are reasonable limits to the federal government’s regulatory authority under the CWA.  

Monday’s announcement follows previous efforts by the Biden Administration to dramatically expand federal regulatory power under the law, and it provides much-needed durability to defining what waters are and are not subject to federal regulation under the CWA.

Transportation and Infrastructure Committee Chairman Sam Graves (MO-06) said, “This action by the Trump Administration is a victory for common sense. Farmers, infrastructure builders, small businesses, manufacturers, home builders, local communities, and property owners will be able to function under a more reasonable regulatory environment without having to worry about the federal government constantly breathing down their necks. We can and will continue to ensure water quality throughout our nation under the Clean Water Act, but this proposed rule also protects the rights of states, individuals, and businesses to produce our food and goods, build infrastructure projects, and grow the economy.”

 

Landowners Can Challenge Army Corps Waters of the US Determination

(Missouri Cattlemen's Association) -- The Supreme Court in United States Army Corps of Engineers v. Hawkes Co., Inc., unanimously set a precedent that landowners may challenge the Corps' jurisdictional determination specifying that a piece of property contains a "Water of the United States (WOTUS)." The National Cattlemen's Beef Association (NCBA) filed an amicus brief in support of Hawkes. NCBA President Tracy Brunner said this is a major victory for landowners across the country.

"This case highlights the issues landowners and land-use stakeholders have with the Clean Water Act," said Brunner. "Neither of the options provided to landowners are realistic under the current regulatory environment. Applying for a 404 permit is expensive, exhaustive and time consuming. Gambling on Environmental Protection Agency (EPA) enforcement and risking civil and criminal penalties is foolish. This case strikes a balance that at least gives us some measure of regulatory certainty in the notoriously unclear Clean Water Act."

The Hawkes case involved three companies engaged in mining peat in Minnesota. Due to the difficulty inherent in determining the need for a 404 Dredge and Fill Permit, the Army Corps allows property owners to obtain a standalone jurisdictional determination if a particular piece of property contains a WOTUS and therefore requires a 404 permit before using the land. Upon receiving an approved jurisdictional determination that their land did contain a WOTUS, the companies exhausted the administrative remedies available and then filed suit in Federal District Court challenging the Corps' jurisdictional determination. The government argued that such a jurisdictional determination was not final agency action and that landowners would have to either discharge without a permit and then challenge EPA enforcement or apply for a permit and challenge the outcome.

"Given the subjective nature of a determination and the inconsistent application of the Clean Water Act, knowing what is or is not a WOTUS was ripe for challenge," said Brunner. "The ability to challenge a determination before going through the time-consuming and costly permitting process, or gambling on EPA enforcement provides a measure of fairness to landowners."

In his concurrence, Justice Kennedy expressed the Court's continued concern with the Clean Water Act, "[t]he Act... continues to raise troubling questions regarding the Government's power to cast doubt on the full use and enjoyment of private property throughout the Nation." NCBA is committed to continuing its WOTUS lawsuit on behalf of its members.