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Waters of the US - WOTUS

EPA’s Overreaching Water Rule

EPA’s Waters of the United States rule officially went into effect on August 28th, in all but 13 states, drastically expanding the reach of the federal government. 

Because of this regulatory overreach, forest landowners as well as other businesses and local governments will be forced to get costly federal land use permits.

The new rule released by the EPA places excessive burdens for forest landowners of all sizes and geographical locations. As such, the new rule has created considerable and potentially costly confusion for landowners, businesses and communities who are just trying to be good stewards of the resource.

Congressional Action Needed: Require the EPA to Withdraw the Waters of the U.S. Regulation and Start Over.

The EPA recently finalized its “Waters of the U.S.” (WOTUS) regulation. This regulation will place more U.S. bodies of water, including small streams and isolated wetlands, under the jurisdiction of the federal government. This will have significant impact on forest management and property rights across the country. The House has passed legislation. The Senate must act now to force the EPA to withdraw the rule and start from scratch.

What you need to know

  • The final rule would give the EPA sweeping powers to regulate land use despite a Supreme Court law clearly prohibiting such overreach.
  • The refusal to clearly define key terms means that the agencies will have broad discretion to identify “waters”—and to limit the scope of most of the exclusions.
  • If WOTUS is allowed to become the law of the land, many forest landowners and their financial security will be directly impacted due to burdensome permitting and compliance fees.
  • In some cases, permits may be denied by the EPA for normal forestry practices in areas deemed Waters of the U.S.  But even if a permit is issued, violations of these paperwork or reporting obligations carry the same potential penalties as unlawful “discharges” up to $37,500 per violation per day and may be enforced by EPA, the state or even interested citizens groups.
  • Despite statements from the EPA, the final WOTUS rule is even broader than the proposed rule in a number of areas and creates even more uncertainty than before.

Congressional Actions to Date:

Several bills have been introduced in Congress to outright kill the WOTUS rule. Additionally, Republicans also attached provisions to fiscal 2016 appropriations bills that would prevent implementation of the rule.  

The House voted in May to overturn the new restriction while a Senate bill to do the same passed out of the EPW committee but has yet to be voted on by the Senate. The administration has indicated it will veto any such measure.

·      H.R. 1732, the Regulatory Integrity Protection Act, sponsored by Rep. Shuster (R-PA) passed out of the House in May. S. 1140, the Federal Water Quality Protection Act, sponsored by Sen. Barrasso (R-WY) and Sen. Donnelly (D-IN) passed out of the Senate Environment and Public Works Committee. This bill must get to the Senate floor as soon as possible for passage and get to the President’s desk.

Key Messages

Issue Background

Currently, the Clean Water Act authorizes the federal government to protect “navigable waters”. The EPA has been trying for years to enlarge its jurisdiction over “all waters” of the U.S., despite three Supreme Court rulings that narrowed the scope of their authority over U.S. waters. Under the guise of “clarifying” which waters are regulated by the federal government and which waters are not, the EPA has finally accomplished this goal by including many more waters of the U.S. under the Agency’s authority. Only Congress can change the scope and authority of the Clean Water Act. Congress needs to force the EPA to withdraw this damaging rule and start over.


Worth Noting

  • More than 230 organizations are on record in opposition
  • 29 states have filed suites against the EPA for redefining WOTUS, asking for it to be declared illegal and for both agencies to draft a new rule.

o   Nebraska, Kansas, Missouri, Indiana, South Dakota, North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Montana, Nevada, Wyoming, New Mexico, Texas, Louisiana, Mississippi, Alabama, Florida, Georgia, Kentucky, South Carolina, Utah, West Virginia, Wisconsin, North Carolina and Oklahoma.

  • EPA has worked with powerful ENGOs to campaign for support of the rule, generating more than 1 million comments in favor of the Rule. 
  • EPA’s actions are considered illegal by Republicans and industry critics for violating anti-lobbying laws. 

o   The Justice Department has told federal agencies that they should not engage in substantial “grass-roots” lobbying.

o   Organizations are calling on House Members to support an investigation into whether these actions by the EPA violated the Anti-Lobbying Act. 

  • Sen. Inhofe sent a letter to EPA claiming U.S. Army Corps of Engineers did not receive the draft final rule until EPA submitted it to interagency review on April 3, 2015, and that the EPA did not fully considered the Corps concerns on technical aspects of the new rule.  Hearings in the House and Senate have been held on this issue.





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