WASHINGTON, D.C. – U.S. Senator Shelley Moore Capito (R-W.Va.), Ranking Member of the Senate Environment and Public Works (EPW) Committee, released the following statement after the Environmental Protection Agency (EPA) issued a new rule repealing the Navigable Waters Protection Rule (NWPR), and changing the definition of Waters of the United States in a way that will expand federal regulatory authority.

“The rule announced today is the latest round of regulatory overreach regarding what waters are subject to regulation under the Clean Water Act, and will unfairly burden America’s farmers, ranchers, miners, infrastructure builders, and landowners.

“I’ve been a longtime leader in the fight to reform our nation’s permitting and environmental review process. Reform is badly needed for infrastructure, transportation, and energy projects of all kinds to move forward. Unfortunately, this rule would move us backwards by making more projects subject to federal permitting requirements and adding more bureaucratic red tape.

“The 2020 Navigable Waters Protection Rule appropriately implemented the Clean Water Act by protecting our nation’s water and providing regulatory certainly. It’s unnecessary to make this third major change to the definition of federal jurisdictional waters in less than eight years.”

BACKGROUND ON WOTUS, NWPR:

In 2015, the Obama administration finalized a rule that expanded the definition of WOTUS, creating confusion and burdensome red tape for West Virginia’s agriculture and coal industries. 

The Trump administration released a proposed rule to replace the 2015 WOTUS rule with a new rule that provided much-needed predictability and certainty for farmers by establishing clear and reasonable definitions of what qualifies as a “water of the United States.” The Navigable Waters Protection Rule (NWPR) was finalized in 2020.

On day one of his administration, President Biden signed an executive order to begin the process of rolling back the Trump administration’s NWPR.

HISTORY OF CAPITO’S ACTIONS ON WOTUS, NWPR:

Ranking Member Capito introduced the START Act in September 2022, comprehensive federal regulatory permitting and project review reform legislation that would have codified the Trump administration’s NWPR definition of “waters of the United States” under the Clean Water Act.

In April 2022, Ranking Member Capito led 45 senators and 154 House members on an amicus curiae brief filed in the U.S. Supreme Court in support of the petitioners in the pending case Sackett v. EPA, which is directly related to how much authority the federal government has over states and private citizens to regulate “waters of the United States” under the Clean Water Act.

In February 2022, Ranking Member Capito led her Republican colleagues on the EPW committee in a letter to EPA Administrator Michael Regan and Assistant Secretary of the Army for Civil Works Michael Connor specifically requesting the Biden administration immediately halt plans to finalize a novel definition of Waters of the United States (WOTUS) under the Clean Water Act until after the Supreme Court’s ruling in Sackett v. Environmental Protection Agency.

In November 2021, Ranking Member Capito issued a statement expressing her dismay at the announcement of the first step in EPA’s two-step process to replace the Trump administration’s 2020 Navigable Waters Protection Rule (NWPR) and promulgate a new definition of WOTUS.
In August 2021, Ranking Member Capito sent a letter to EPA Administrator Regan and Jaime Pinkham, the Acting Assistant Secretary of the Army for Civil Works, asking for a more complete and comprehensive stakeholder engagement process regarding repealing and replacing NWPR. Specifically, Ranking Member Capito requested an extended public comment period for receiving recommendations. 
That letter followed Ranking Member Capito’s previous letter requesting additional clarity on the basis for the decision to repeal and replace NWPR and yet another letter, in which she led her Republican colleagues on the committee in sending, requesting increased transparency into the process of repealing NWPR.
In July 2021, Michael Connor, President Biden’s nominee to lead the Corps, admitted he wasn’t aware of any specific environmental degradation under NWPR.
Ranking Member Capito, along with Senators Cramer, Lummis, Inhofe, and Wicker, also introduced legislation in July 2021 that would codify NWPR.

In February 2021, the Senate passed an amendment introduced by Senator Capito that upheld the Trump administration’s NWPR.

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