Northwest Arkansas Democrat-Gazette
Arkansans give ‘no’ vote to rule on ‘U.S. waters’
Broad definition proposed for federally protected bodies
WASHINGTON — Arkansas’ members of the U. S. House of Representatives joined Republican colleagues on Thursday in objecting to a rule from President Joe Biden’s administration defining the bodies of water under federal protection.
The House voted 227-198 in favor of a resolution nullifying the revised “waters of the United States” rule, which clarifies the waterways and wetlands protected under the Clean Water Act. The Environmental Protection Agency and the U.S. Department of the Army issued the definition in January, with the guidance set to take effect March 20.
Reps. Rick Crawford of Jonesboro and Bruce Westerman of Hot Springs were among the 170 co-sponsors of House Joint Resolution 27. Nine Democrats joined 218 Republicans in Thursday’s vote.
The new rule replaces the Trump administration’s 2020 rule reducing protections for waterways, which itself followed the Obama administration’s efforts to expand the waters and wetlands under federal protection.
When the EPA and the Department of the Army announced the new definition Dec. 30, officials said they based the rule on a “waters of the United States” definition in effect between 1986 and 2015. The agencies at the time noted actions during the Obama and Trump administrations “have caused uncertainty that harmed communities and our nation’s waters.”
The new regulation additionally codifies guidance from a 2006 U.S. Supreme Court case, Rapanos v. United States. Then-Justice Anthony Kennedy said the Clean Water Act must apply to wetlands and actions affecting the “chemical, physical, and biological integrity” of downstream waters. In a separate opinion in the case, four other justices stated the rule should be extended to wetlands that have a nexus to a protected waterway.
“A lot of that language about applying either of the Rapanos standards actually comes out of memoranda that was issued by EPA within the couple years following the Rapanos decision,” said Brigit Rollins, a staff attorney at the nonpartisan National Agriculture Law Center in Fayetteville.
Crawford offered blunt criticism of the “waters of the United States” definition when speaking to the Arkansas Democrat-Gazette outside the House chamber on Wednesday.
“If I can put it quite succinctly: WOTUS sucked when it started, and it sucks now,” he said.
Crawford, a member of the House Agriculture Committee, expressed concerns about how the new rule could affect agriculture producers in Arkansas given the inclusion of the Supreme Court’s standards.
“Since every body of water is connected, then therefore, the federal government has control over every single body of water,” he said. “It may be as simple as saying navigable waters versus waters, but they didn’t say navigable waters; they said waters of the U.S., which is all-encompassing.”
Crawford added a warning: “Any industry that uses water is probably going to be hit adversely as a result of WOTUS and the full implementation.”
Westerman shared similar concerns, describing the rule as a “huge overreach of government.” Westerman also defended the Trump administration’s Navigable Waters Protection Rule that narrowed protections to waterways used for commerce as well as certain lakes and adjacent wetlands.
“I don’ t know why the Biden administration couldn’t leave well enough alone,” Westerman said. “It was something that had been worked on for a long time, and I believe it was a great solution.”
Rollins said the Navigable Waters Protection Rule was “famously narrow” in protections for bodies of water compared to older “waters of the United States” definitions.
“There was a lot of room for the agencies to need to come out and make an assessment,” she said of guidance prior to the Trump administration.
“They were looking at could this particular water — if it was degraded — could it have an impact on these clearly, traditional navigable waters? If so, then we may need to consider that water a WOTUS and protect it under the Clean Water Act as part of achieving the overall goal of the act.”
Republicans in the U.S. Senate, including Arkansas Sens. John Boozman and
Tom Cotton, have lined up to support an identical resolution to the House bill. Biden has promised to veto any resolution.
A presidential veto would not end the debate surrounding the federal government’s protections; the U. S. Supreme Court heard arguments last October regarding an Idaho couple’s efforts to build a home near what federal officials determined to be protected wetlands. The court will issue its opinion on the matter by late summer.
“Should the Supreme Court issue a ruling where they are fully adopting that plurality opinion in Rapanos, or should they even issue a ruling that is not fully adopting the plurality opinion but is perhaps eliminating wetlands jurisdiction, that could certainly impact this new rule,” Rollins said. “It’s not impossible to imagine a situation where the Supreme Court’s ruling is more narrow than the rule EPA just issued.”
The new rule is also the subject of legal challenges from states and industry groups looking to prevent its enforcement. Arkansas is part of a West Virginia-led lawsuit seeking to vacate the rule.
“I think it’s fair to say we’re probably going to see certainly something happening,” Rollins said.
Westerman, who serves as chairman of the House Natural Resources Committee, expressed a willingness to consider a measure on water protections in a situation in which federal lawmakers “have to pass legislation to fix it.”
Crawford expressed a lack of confidence in agencies — if officials had to revise the definition due to the Supreme Court and legal challenges — placing limitations on regulatory authority.
“I’m not completely satisfied if they added navigable as a qualifier because, again, you’re putting bureaucrats in a position of making a determination of what constitutes navigable,” he said.