“Uncertainty” was the word of the day at a congressional hearing Wednesday focused on the Biden administration’s “waters of the U.S.” rule and a pending Supreme Court decision addressing the issue.

The Supreme Court ruling in the Sackett case, argued in October, “could very well send the administration back to the drawing board on a WOTUS definition — ultimately creating even more confusion and uncertainty” for farmers and other landowners, Rep. David Rouzer, R-N.C., chairman of the House Transportation & Infrastructure’s Water Resources and Environment Subcommittee, said in his opening statement.

Speaking on behalf of the American Farm Bureau Federation, Missouri Farm Bureau President Garrett Hawkins said “we have experienced uncertainty for decades due to ever-changing rulemakings” redefining the scope of the Clean Water Act.

The Biden rule perpetuates the confusion, he said, and “will greatly expand the federal government's reach over private property by allowing them to assert jurisdiction over ephemeral drainages such as ditches, swales and low spots on a farm field,” Hawkins said. “The use of the ‘significant nexus’ test allows the agencies to aggregate waters together and the reliance on the vague term provides the agencies the latitude to reach whatever conclusion they please.” 

“It is impossible for any farmer to know if a feature on their property is a WOTUS,” he told the subcommittee.

He also said farmers in his state are worried that lawsuits might challenge “normal, everyday practices. They have every right to be concerned about future investment in their farming operations and have to second-guess whether putting in place that conservation practice or building that structure or investing in that building is worth it, if you're going to be embroiled in red tape and a potentially yearslong process.”

Rouzer and other House Republicans, as well as Senate Republicans, are supporting a resolution to invalidate the Biden rule, which goes into effect March 20, using the Congressional Review Act. That effort is unlikely to succeed, because President Joe Biden would veto it, and a two-thirds majority would be needed in both Houses to override him.

The House committee’s ranking Democrat, Rep. Rick Larsen of Washington, said a successful CRA resolution would create more uncertainty.

The more immediate issue is the Supreme Court’s decision in the case of Idaho landowners stymied in their development efforts because of an EPA finding that they were working in what are classified as “adjacent wetlands.” The court’s decision will require EPA and the Army Corps of Engineers to conduct some type of review of their rule, but the question is whether they will have to change significant portions.

One witness before the committee, former Trump administration EPA official Susan Parker Bodine, a lawyer at Earth & Water Law LLC, doesn't expect the justices to uphold the long-standing “significant nexus” test to determine whether waters are jurisdictional.

“The question is, what else?” she asked.

“So, in this window of time, when we have a new rule put before us that may not be supported by the Supreme Court, the most efficient thing right now would be to exercise our responsibilities under the Congressional Review Act, set this aside and wait for clarity to come down from the Supreme Court,” said GOP Rep. John Duarte, who as a farmer in California engaged in a protracted battle with federal regulators and the Justice Department over plowing operations. He ultimately paid $1.1 million in fines and mitigation credits to settle the case without admitting liability.

Bodine, Hawkins and witnesses representing the sand, stone and gravel industry and homebuilders said the Biden rule significantly expands federal jurisdiction over waters such as ephemeral streams and small wetlands.

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“In particular, the rule allows agencies to claim extremely broad authority over isolated ponds and wetlands that they have not attempted to regulate since the (Supreme Court’s) 2001 SWANCC decision,” she said. While the actual impacts are difficult to quantify because of the case-by-case determinations made mostly by the Army Corps of Engineers, “past experience … suggests that the agencies will aggressively claim authority” over both land and waters, she said.

“When landowners, farmers and municipalities later challenge that overreach, the agencies will tell the courts that they get deference because they're interpreting their own regulation.”

She said the rule was “designed to evade judicial review” by including “most of the details” of the rule in its preamble, the text that appears before the actual regulations.

David Owen, a professor at the University of California College of Law and the only Democratic-chosen witness on the panel, pushed back on the idea that the Biden rule was a dramatic change from the Clean Water Act’s regulatory regime since the Jimmy Carter era. The “outlier,” he said, was the Trump administration’s 2020 Navigable Waters Protection Rule, which was replaced by the Biden rule.

“We've had a lot of continuity in terms of scope of jurisdiction, really dating back not just to 1986 but to 1975,” Owen said.

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