Clean Water Act: Tug of War Indicate Pivot to Regulatory Focus

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The Biden Administration is entering the second half of its first term and will be faced with working with a House of Representatives now under a slim Republican leadership. Although Democrats hold a similarly tight majority in the Senate, history tells us it will be difficult for the administration to pass large, overarching pieces of legislation under the current Congressional construct. As is the case with many administrations, of both parties, in the same situation, exercising their regulatory power becomes key to moving its agenda forward. We already have seen some signs of this pattern continuing in the 118th Congress.

On December 30, just as 2022 ended, the Environmental Protection Agency (EPA) announced a final rule to establish yet another definition of Waters of the United States (WOTUS). This action is the latest attempt to settle the regulatory back-and-forth over the scope of federal Clean Water Act (CWA) jurisdiction that has prevailed over the past four administrations. By way of background, the CWA regulates agricultural and industrial discharges into waterways falling into the WOTUS category, thereby triggering permitting requirements that may encumber the use of private property, including timber harvest. Although the CWA defines impacted waterways as a “navigable water,” the law does not provide additional statutory clarity about what exactly “navigable” means, therefore punting the issue to a series of EPA rulemakings and related litigation.

The latest version of the rule will go into effect 60 days after publication in the Federal Register. EPA’s final rule, which will define the scope of federal water permits, restores onerous requirements that were in place prior to the “navigable waters rule” issued in 2015 under the previous administration. Agriculture groups characterized the Trump EPA’s “navigable waters rule,” issued in 2020, as having more clarity and flexibility than past iterations of the regulations. That said, the “navigable waters rule” also created uncertainty in the court system, with a federal court having vacated and remanded the regulations in August 2021.

Waters of the United States (WOTUS) The expanded WOTUS rule will have direct impacts on the hardwood sector. The expanded definition of navigable waterways will increase the scope of certain permit requirements, such as the use of herbicides in forest management into or over waterways meeting rule requirements.

Added administrative burdens and legal uncertainties associated with the expansion also can drive down forestland values, thereby hastening forest conversion to other uses. Forest retention and expansion are important tools for preserving water quality. By increasing pressure on forest conversion, the proposed expansion could ultimately reduce water quality protections in forested areas, thereby undermining key tenets of the CWA. The new rule also may create uncertainty over the applicability of mandatory Best Management Practices (BMPs) for certain forestry activities. For example, expanding a WOTUS designation to an entire floodplain will create significant uncertainty regarding the extent of mandatory BMP applications for wetlands, particularly in areas where mandatory BMPs are unnecessary.

A broad cross-section of industry groups, including the American Farm Bureau Federation, are criticizing the new rule, claiming it will expand regulators’ reach over private property. The U.S. Chamber of Commerce also has expressed skepticism and urged the administration to pause new requirements before moving forward with regulations that may create additional uncertainty. Congressional leaders also are weighing in, with hardwood industry ally Rep. GT Thompson (R-PA) characterizing the rule as a “land grab.”

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Assuming that the past is prologue, litigation will no doubt follow issuance of the latest WOTUS rule. In the wake of the 2015 version, 27 states filed lawsuits challenging the Obama Administration’s action. Industry groups, including the National Alliance of Forest Owners, along with 13 other multi-industry groups, also filed a lawsuit, arguing that the 2015 regulations were inconsistent with the CWA and exceeded the agencies’ authority under the Constitution to regulate interstate commerce.

The path to fixing a key pillar of the broken CWA goes directly through Congress. Amending the CWA and clarifying statutory definitions provides the best chance of removing this important permitting issue from the agencies and the courts. It will be interesting to see what, if any, legislation is put forward that can finally put this lingering issue to bed. Similar concerns are being raised about regulatory efforts around forest management, clean air, and endangered species rules. The Hardwood Federation will continue to track these efforts and comment appropriately. We also will keep you posted on legislative and legal remedies that may emerge to mitigate the impacts of the new rules.

Dana Lee Cole is the executive director at the Hardwood Federation, a Washington, D.C.-based hardwood industry trade association that represents thousands of hardwood businesses in every state in the United States and acts as the industry advocacy voice on Capitol Hill. She can be reached at dana.cole@hardwoodfederation.com.

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