U.S. Senator John Barrasso (R-WY), chairman of the Senate Committee on Environment and Public Works (EPW), delivered the following remarks at a committee oversight hearing on “A Review of the Technical, Scientific, and Legal Basis of the Waters of the United States (WOTUS) Rule.”
The hearing featured testimony from Major General John Peabody (Ret.); Dr. Michael Josselyn, the principal of Wetlands Research Associates; Mr. Misha Tseytlin, solicitor general for the State of Wisconsin; Mr. Ken Kopocis, associate professor at American University Washington College of Law; and Mr. Collin O’Mara, president and CEO of the National Wildlife Federation.
For more information on their testimonies click here.
Senator Barrasso’s remarks:
“On February 28th, President Trump signed an Executive Order directing EPA and the Army Corps of Engineers to review the Obama Administration’s Waters of the United States or WOTUS Rule and publish a proposed rule that would rescind or revise that rule.
“While this action was both correct and important, the long saga of the WOTUS rule is not yet over.
“This fundamentally flawed rule is still on the books and needs to be withdrawn.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.
“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.
“General Peabody is a decorated retired member of the military who was the Commanding General for Civil and Emergency Operations at the Corps of Engineers until he retired in the fall of 2015.
“He will tell us that the definitions in the WOTUS Rule are not based on the Corps’ expertise and experience.
“In fact, the Corps was shut out of the process of writing the final rule and the support documents for the final rule.
“The Corps is the agency that performs the on the ground inspections that identify what water is federally regulated.
“If the rule is not based on their experience, that means it has no technical basis.
“It is, instead, a blatant government power grab.
“Dr. Josselyn is a PhD and a professional wetland scientist who was a member of the Science Advisory Board panel put together by the EPA that reviewed EPA’s ‘Science Report.’
“This report is a scientific literature review on water connectivity.
“The Obama EPA claimed that the WOTUS rule is based on the conclusions of this report.
“Dr. Josselyn will tell us that, in fact, this report does not address the issue of where federal regulators should establish jurisdiction.
“EPA’s Science Report looks at connections to water, but fails to examine whether connections are significant and most of the studies in the report do not address navigable water.
“Instead, this report concludes that all water is connected.
“Our children learn that in 4th Grade when they learn about the water cycle.
“But that has nothing to do with federal jurisdiction.
“And it means that EPA’s Science Report cannot be used to justify the WOTUS Rule.
“Mr. Tseytlin is the solicitor general for the State of Wisconsin and works with the 31 states that are challenging the WOTUS Rule.
“Mr. Tseytlin will tell us that the final rule included new definitions that were created without public input, and even without public notice.
“This means that the WOTUS rule is arbitrary and capricious and violates the Administrative Procedure Act.
“We also will hear from Mr. Kopocis.
“He was the deputy assistant administrator for the Office of Water in the Obama Adminstration.
“Mr. Kopocis will tell us that the Obama Administration met with states and other stakeholders during the rule making process.
“But that does not change the fact that between the proposed rule and the final rule, the Corps was arbitrarily or deliberately shut out of the process.
“The end result is the Obama Administration wrote a rule that is not supported by agency expertise, by agency experience, by the science, or the law.
“Finally, we will hear from Collin O’Mara, President & Chief Executive Officer, National Wildlife Federation.
“The National Wildlife Federation is very interested in protecting wildlife habitat.
“The right way to do that is to form partnerships with landowners, not to expand federal control over private property.
“In fact, in 2014 the Fish and Wildlife Service issued a report that notes that the service works with landowners to employ cooperative conservation measures to preserve isolated wetlands like prairie potholes, measures that let farming continue.
“If the WOTUS rule goes into effect, instead of working cooperatively, the federal government could simply take control of private land and shut down farming activity.
“We have already had attempts to do this in my home state of Wyoming where Mr. Andy Johnson who EPA threatened to fine $37,500 per day for simply building a stock pond on his property.
“After looking at this record, the only course of action that makes sense is to withdraw the rule and start over.
“I hope we see quick action to lift this threat to farmers and other land owners that has been created by the WOTUS rule.”