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Dear Members of Congress
Americans for Prosperity urges passage of joint resolutions H.J. Res. 27/S.J.Res. 7 disapproving of the final Waters of the United States (WOTUS) rule, published by the Environmental Protection Agency and Army Corps of Engineers (Agencies) in the Federal Register on December 30, 2022. The resolutions are a prime example of how Congress can leverage administrative state reform to remove onerous regulatory burdens and in so doing unleash the American economy. Under the Congressional Review Act (CRA), a recently finalized agency rule may be repealed through bicameral resolutions of disapproval signed by the President. Passage of the joint resolutions will force the President to take ownership of the actions of an unaccountable administrative state that is holding back our economy and hurting the most vulnerable by imposing artificial constraints on supply in a variety of key markets, resulting in higher prices for staples like housing and energy.
The WOTUS rule extends a Clean Water Act permitting regime (known as Section 404) despite growing bipartisan recognition that existing permitting burdens undermine the ability of project developers to put private investment to work to address supply shortages throughout the economy and thus exacerbate inflation. The rule will increase barriers to constructing new housing, mining operations, supply chain nodes such as ports, and energy production and transmission, among other projects. Importantly, the rule will add delays and costs to the siting and construction of new linear infrastructure, including pipelines for traditional energy and transmission lines that would be needed for increased renewable penetration onto the grid.
In addition to threatening even small, landlocked landowners with ruinous fines should they attempt to make use of and enjoy their property, the rule adds needless regulatory uncertainty for project developers at a sensitive time for the economy. The rule reincorporates the “significant nexus” text, a vague standard which can subject land to Clean Water Act jurisdiction based on little more than a period of heavy rain. This standard gives the Agencies far too much discretion to block development on private property. In extreme cases, this may provide the Agencies cover to decide when a permit is needed or issued based on political favoritism.
At a minimum, the rule subjects significantly more property owners and project developers to a labyrinthine permit process that serves the interests of bureaucrats and environmental consultants at the expense of Americans families and business. In so doing, the rule also expands the ability of State administrative agencies to block economic development by pretextually withholding from disfavored industries water quality certifications under Section 401 of the Clean Water Act. This uncertainty is made worse by the fact that the Supreme Court is set to rule this summer on a challenge to a prior version of the WOTUS rule, the worst aspects of which this final rule revives. However, the courts are no substitute for Congress exercising its exclusive Article I authority to make law.
Congress should seize its Constitutional role and bring clarity to the chaotic landscape of Clean Water Act permitting. We urge Congress to take a stand against the administrative state and unleash America’s project developers by voting for the joint resolutions and advancing repeal of the administration’s harmful WOTUS rule.
Chief Government Affairs Officer
Americans for Prosperity
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