Senate Committee Holds Hearing on WOTUS Rule

Under the controversial rule, convenience stores near or touching protected water will be subject to special permitting and Clean Water Act requirements.

April 28, 2017

WASHINGTON – On April 26, the Senate Committee on the Environment and Public Works (EPW) held a hearing to review the technical, scientific and legal basis of the “Waters of the United States” (WOTUS) rule. The rule, which was issued jointly by the EPA and the U.S. Army Corps of Engineers (Corps) during the Obama administration, was intended to clarify which streams and wetlands are protected under the Clean Water Act (CWA).

Such waters are subject to the CWA’s numerous regulatory permitting requirements. Critics of the rule contend it is overly broad and lacks a substantive grounding in science and law. Furthermore, convenience retailers who operate a site near or touching a protected body of water will be subject to special permitting and CWA requirements.

In his opening remarks, U.S. Sen. John Barrasso (R-WY), chairman of the EPW Committee, called the WOTUS rule a “fundamentally flawed rule” that is still on the books and needs to be withdrawn.

“The Supreme Court has decided to rule on whether or not circuit courts have the jurisdiction to hear challenges to the rule,” Barrasso continued. “If the Supreme Court decides that these cases belong in district courts, then the nationwide stay that the Sixth Circuit Court of Appeals issued will go away.

“If that happens, this terrible, unlawful rule, will go into effect and EPA and the Corps will be able to regulate isolated ponds and dry stream beds that have no impact on navigable water and were never intended to be covered under the Clean Water Act.

“As we will hear from our witnesses today, the justification for withdrawing the rule is overwhelming.”

During the hearing, three witnesses opposed to the rule argued that EPA did not fully consider recommendations from its Science Advisory Board related to the science on which the rule is based, and that the rule infringes upon states’ legal capacity to regulate their own waters. They also claimed that the Corps and states were not properly consulted during the rule’s drafting process.

Two witnesses who support the rule argued that EPA did consult with the Corps, held a variety of forums designed to liaise with stakeholders, and reviewed and acknowledged over one million public comments when drafting the rule. They also claimed EPA based the rule on widely-accepted Supreme Court decisions and used a wide variety of peer-reviewed scientific articles in creating the rule. The Democratic witnesses also agreed that although not perfect, the WOTUS rule is necessary to clarify existing requirements and protect downstream water quality.

The committee’s hearing follows President Trump’s February executive order directing EPA to revise or rescind WOTUS. The rule is currently stayed pending legal challenges, including a pending petition before the U.S. Supreme Court over the question of which court is best suited to hear those challenges.