August 2, 2017
The Honorable John Cornyn
The United States House of Representatives
517 Hart SOB
Washington, DC 20510
Dear Representative Cornyn,
We encourage your continued support of rescinding the Environmental Protection Agency’s Clean Water Rule (CWR). In 2015, the EPA, in conjunction with the U.S. Army Corps of Engineers, announced a final rule defining the scope of waters subject to regulation under the federal Clean Water Act, revising regulations that were in place for more than 25 years. Challenged in court by 31 states, including Texas, the rule set arbitrary standards, grew federal bureaucracy, and violated the Administrative Procedure Act.
The rule changed the administrative definition of “waters of the United States” in a way that brought more surface waters under the federal government’s purview. It was strongly opposed by the agricultural community, with farmers correctly pointing out that it introduced widespread uncertainty, as well as potentially-crippling liability for small business owners that were not in compliance. By enlarging federal jurisdiction over small streams and other water sources, the rule made them subject to permitting and pollution mitigation requirements. Even certain potholes, puddles, and backyard creeks could have been covered, raising legitimate questions about violations of property rights.
Indeed, when Texas joined the coalition of states filing suit against the Obama Administration, Attorney General Ken Paxton called the rule “so broad and open to interpretation that everything from ditches and dry creek beds, to gullies, to isolated ponds formed after a big rain could be considered a ‘water of the United States.'” Due in part to Texas’ and other states’ litigation efforts, the rule was stayed by a federal court.
In light of President Trump’s executive order earlier this year calling for the rule’s elimination, the time has now come to take further action. We support the EPA’s recent announcement that it will move to rescind the rule. EPA Administrator Scott Pruitt stated the matter perfectly: rescinding the CWR would be a “significant action to return power to the states and provide regulatory certainty to our nation’s farmers and businesses.” It will “provide regulatory certainty, in a way that is thoughtful, transparent and collaborative with other agencies and the public.”
Administrative agencies such as the EPA should never assert independent sovereignty and lawmaking authority that is superior to the states, Congress, and the courts. Rescinding the rule values and protects the liberty of landowners and safeguards it against this governmental intrusion.
Thank you for your leadership on this issue and hope that you will continue to support the EPA and Army Corps of Engineers as they endeavor to rescind and replace the rule.