U.S. Senator Shelley Moore Capito (R-W.Va.), Ranking Member of the Senate Environment and Public Works (EPW) Committee, released the below statement following the U.S. Environmental Protection Agency’s (EPA) announcement of the first step in EPA’s two-step process to replace the Trump administration’s 2020 Navigable Waters Protection Rule (NWPR) and promulgate a new definition of Waters of the United States (WOTUS):

“Today’s announcement affirms EPA’s intent to create a rule defining WOTUS, which will likely be even more stringent than the Obama administration’s 2015 WOTUS Rule. Farmers, ranchers, manufacturers, private land owners, and other stakeholders should expect reduced regulatory certainty and a continued lack of transparency in their livelihoods.

“This is not the way to create enduring policy. EPA remains unacceptably opaque about its decision to repeal NWPR—a rule that was implemented in all 50 states, unlike the Obama WOTUS rule. A federal permit not being required does not de facto translate to environmental harm, and no specific examples of any actual environmental harms occurring under NWPR have ever been provided by EPA or the U.S. Army Corps of Engineers. Based on the indications of today’s first step, the Biden EPA’s final rule will most likely be challenged in the courts, and thus the cycle of uncertainty continues.”

In August, Ranking Member Capito sent a letter to EPA Administrator Michael Regan and Jaime Pinkham, the Acting Assistant Secretary of the Army for Civil Works, asking for a more complete and comprehensive stakeholder engagement process regarding repealing and replacing NWPR. Specifically, Ranking Member Capito requested an extended public comment period for receiving recommendations.

That letter followed Ranking Member Capito’s previous letter requesting additional clarity on the basis for the decision to repeal and replace NWPR and yet another letter, in which she lead her Republican colleagues on the committee in sending, requesting increased transparency into the process of repealing NWPR.

In July, Michael Connor, President Biden’s nominee to lead the Corps, admitted he wasn’t aware of any specific environmental degradation under NWPR.

Ranking Member Capito has also introduced legislation that would codify NWPR.

BACKGROUND:

In 2015, the Obama administration finalized a rule that expanded the definition of the Waters of the United States, creating confusion and burdensome red tape for agriculture and coal industries across the country.

The Trump administration released a proposed rule to replace the Obama administration’s 2015 WOTUS Rule with a new rule that provided much-needed predictability and certainty for farmers by establishing clear and reasonable definitions of what qualifies as a “water of the United States.” The new NWPR was finalized last year. Specifically, the NWPR established a definition that unambiguously identifies four simple categories of jurisdictional waters, provides clear exclusions for many water features—water features that traditionally have not been regulated at the federal level—and defines terms in the regulatory text that have never been defined before. The NWPR also protects the environment while respecting the cooperative federalism framework of the Clean Water Act. Specifically, it clearly delineates where federal regulations apply and gives states and local authorities more flexibility to determine how to best manage waters within their borders.

On day one of his administration, President Biden signed an executive order that would roll back the Trump administration’s actions of rescinding Obama’s WOTUS rule and finalizing the NWPR. In January, Ranking Member Capito and 25 of her Senate colleagues introduced a resolution that expresses the need for the U.S. Senate to uphold the NWPR.

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