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Congressman Adrian Smith

Representing the 3rd District of Nebraska


Red Tape Rollback

September 9, 2019

Regulations. While the word is often used in a negative light, the process of setting regulations as established by the Administrative Procedures Act (APA), enacted in 1946, plays an import role in allowing federal agencies to appropriately implement federal laws passed by Congress. Under APA, agencies are required to release a draft rulemaking, allow time for public comments, and respond to public concerns when releasing a final rule. Examples of constructive uses of the federal regulatory process include the Federal Communications Commission’s current efforts to crack down on illegal robocalls, which I support, and the annual process through which Medicare sets rates it will pay health care providers for services administered to senior citizens.

Unfortunately, and particularly under the Obama administration, regulations can often reach beyond the bounds of what was intended by Congress, standing beyond common sense and in the way of economic development. Once issued, it can be difficult to rescind outdated, or even duplicative regulations. Although some rules are well-intended, they often come with onerous consequences. Since the beginning of his term, President Trump has made it a priority to roll back overreaching regulations.

One such rule was the Waters of the United States (WOTUS) rule. Under the Clean Water Act, as enacted in 1972, the EPA’s jurisdiction is statutorily limited to navigable waters. Regulation of non-navigable waters is the responsibility of the states. In 2015, the Obama administration instituted a new regulation to vastly expand EPA’s jurisdiction to include virtually all water flows, from ditches to prairie potholes, even on private land.

WOTUS would greatly impact Nebraska – the state with the most miles of rivers – and every other state. Since the 2015 rule, I have fought against WOTUS. In fact, a bill repealing WOTUS which I authored made it to President Obama’s desk in 2016 before being vetoed. I did not stop there, and have found a willing partner in President Trump. Last December, the administration announced they would begin the rulemaking to repeal the WOTUS rule. The finalized repeal rule is likely coming soon; a huge win for Nebraska.

President Trump also recently replaced the Obama administration’s far-reaching and unattainable “Clean Power Plan” with a much more realistic Affordable Clean Energy (ACE) rule. The ACE rule provides states with more flexibility to develop their own energy policies and innovations for reducing carbon emissions, rather than dictating a one-size-fits-all mandate from the federal government.

The ultimate goal of the Endangered Species Act (ESA), is to get endangered creatures to a point where they have a population sustainable enough to be removed from the endangered species list. When species not in need of protection remain listed, it diverts resources from species which need it. We must use sound science for these decisions. Because of this, President Trump issued a rule moving the ESA closer to its original intent by ensuring science dictates when species are ready to be removed from the list. They will continue to be monitored for five years after delisting.

The gray wolf is an example of species remaining listed for too long. U.S. Fish and Wildlife Service (USFWS) determined in 2013 the species was ready to be delisted. Politics got in the way, and the gray wolf remained on the list. I signed a bipartisan letter to Interior Department Secretary and USFWS Principal Deputy Director urging the USFWS to expedite its delisting. Fortunately, the President has started the rulemaking process to do so.

As with anything, some regulations are needed so we can live our lives. However, we have also seen the damage when regulations exceed the original intent of Congress. This is why we must keep a close eye on which ones are working, and which ones are not. We cannot be afraid to say when regulations are no longer useful or are doing harm. I am glad the President is taking this seriously, and I will continue to support this effort.