Missouri’s Sam Graves can use new power to take aim at controversial clean water rule

Consider a farmer.

There’s a grass waterway in her field and she wants to make some improvements to how water flows across her land. But if that waterway is part of an ecosystem that feeds into a large, navigable waterway — like the Missouri River — it may fall under the jurisdiction of the Clean Water Act.

Figuring that out is confusing and complicated. It may involve getting a scientific review, lawyers and a permit from the federal government before you can make any type of decision about what to do with the land. Even more complicated, is that the rules governing navigable water have changed three times since 2015.

“This is the single most difficult area of environmental jurisprudence in all of environmental law, in my opinion,” said Stan Meiburg, the executive director of the Center for Energy, Environment and Sustainability at Wake Forest University. “It’s just unbelievably complicated.”

For decades, the Waters of the U.S. rule, part of the Clean Water Act, has been a thorn in the sides of farmers, ranchers and the fossil fuels industry as the federal government has sought to clean up the country’s waterways and preserve the environmental ecosystems that surround them.

Those opposed to the rules say they’re confusing and can run up costs for those trying to figure out if they can make improvements to their land. Those who support of the rules say they’re important in preventing pollution in the country’s waterways.

As the newly christened chairman of the Transportation and Infrastructure Committee, Rep. Sam Graves, a Republican whose district stretches from Kansas City across northern Missouri, now has the ability to step in and craft congressional policy on an environmental rule that for decades has bounced around the federal court system.

Graves’ office did not respond to a request for comment, but he has been outspoken in his opposition to the federal government’s efforts to regulate certain waterways for decades. He has criticized a new Biden administration rule that seeks to strike a compromise between previous rules, court rulings and complaints from farmers and businesses.

“Our economy continues to struggle with the economic crises brought about by the disastrous economic policies of this Administration, and it makes absolutely no sense to move the country back towards the costly and burdensome WOTUS regulations of the past,” Graves said in a December press release. “It’s particularly foolish to do this now and waste federal resources when the Supreme Court has yet to rule on the issue – a ruling that will impact and alter what the Administration is hastily putting forward.”

Along with Sen. Shelley Moore Capito, R-West Virginia, Graves led an amicus brief in April in a pending Supreme Court case against earlier rules, urging the court to give the EPA and Army Corps of Engineers a more limited scope when it comes to setting rules about navigable waters.

The argument over the extent of the EPA’s jurisdiction has been before the Supreme Court before.

In a 2006 plurality decision, meaning the court did not have enough votes to constitute a majority, Justice Antonin Scalia wrote that the jurisdiction of the EPA should be limited to relatively permanent bodies of standing or flowing water that connect to navigable rivers and wetlands. But Justice Anthony Kennedy wrote that any wetland that has a “significant nexus” with a navigable water should count. Courts have often used Kennedy’s test when determining whether the rules of the Clean Water Act apply.

Over the years, positions on the Clean Water Act have fallen along party lines. Democrats have sided with environmentalists and have sought ways to regulate and protect ecosystems. Republicans have erred on the side of state control over waterways, resisting federal environmental regulations.

Rep. Sharice Davids, a Kansas Democrat who serves on the Transportation Committee, said through a spokeswoman that she wants clear and consistent standards, but doesn’t want to see Congressional action before the Supreme Court rules.

“Rep. Davids believes getting to a clear and consistent standard for federal jurisdiction over wetlands and waterways is extremely important, particularly for Kansas farmers and ranchers,” said Ellie Turner, Davids’ communications director. “But she is wary of taking additional Congressional action before the Sackett case is decided and outside of the traditional committees of jurisdiction (i.e. Natural Resources and Agriculture).”

A spokeswoman for the House Natural Resources Committee said Waters of the U.S. has always been within the jurisdiction of the Transportation Committee.

Graves takes the Scalia view of the rule, where he believes the federal government should be limited to waterways that clearly touch navigable waters. That’s often the perspective taken by farmers, who say they’re looking for clearer rules on when they can make changes to their property.

“Our members, farmers and ranchers across the country, they want to do the right thing,” said Greg Doering, a spokesman for the Kansas Farm Bureau. “They want to be abiding by all the laws and regulations that exist. But they need a little bit more certainty in, if they go out and do something on one of their fields, they’re not violating a federal law facing civil or criminal penalties for doing so.”

It is unclear how the Transportation Committee may step in. A spokesman for the committee indicated it has options under the Congressional Review Act, which allows Congress to prevent “major rules” by the executive branch from taking effect, by passing legislation to directly address the issue or by using the appropriations process to change how the EPA and Army Corps of Engineers can apply the rule.

All three options would require action from the Senate, where Democrats have a narrow majority and it often takes bipartisan support to pass legislation.

Though legislation might not be necessary, depending on how the Supreme Court rules later this year. If the new, conservative-leaning court chooses to apply Scalia’s rule, which would limit the jurisdiction of the federal government, it would align with Graves’ position.

Meiburg said the thing that makes Waters of the U.S. so complicated, is that people are operating under two completely different frameworks in determining where the rules apply. Either they’re looking at it from an ecological framework and trying to determine how it impacts a functioning ecosystem or they’re looking at it from a legal framework that tries to come up with narrow, concise definitions for people to follow.

Under the Biden rules, the EPA seems to be closer to Kennedy’s interpretation, where it looks at things from an ecosystem perspective and relies heavily on looking at things in a case by case basis. Under a version of the rule by the Trump administration, the focus was closer to Scalia’s interpretation, where it’s just limited to water that clearly connects to navigable water.

While the heart of the issue is control — whether states get control of regulating waterways or the federal government gets control — at the end of the day, Meiburg said, the goal of the Clean Water Act is to make sure that water and water ecosystems are protected.

“The fear of those who looked at the narrow definition is that it would leave certain waters and watersheds unprotected,” Meiburg said. “The fear of those who are worried about the more expansive definition is that they have to undertake transactions and get a permit that they believe would not be necessary even to protect waters.”