Who Defines WOTUS? It Might Come Down to the President or Supreme Court

Efforts to use the Congressional Review Act (CRA) to repeal the Biden administration’s Waters of the U.S. (WOTUS) rule could end up having unintended consequences, according to Radhika Fox, EPA assistant administrator for water. Fox told the Senate Environment and Public Works Committee it could remove protections that were built into the rule.

EPA's Latest WOTUS Update

The EPA published its final definition of WOTUS on Dec. 30, which gives federal protection to large waterways, such as interstate rivers and streams, and adjacent wetlands. 

“The EPA’s new rule doubles down on the significant nexus test, which is this unworkable test for jurisdiction of when the federal government regulates farms and ranches,” says Travis Cushman, Farm Bureau’s deputy general counsel. 

The Supreme Court is evaluating a decision on another WOTUS case that could significantly impact WOTUS rulemaking, which is set to be ruled on later this year.

So, why did EPA move forward with the rule change now? Ted McKinney, National Association of State Departments of Ag (NASDA) CEO, says his team has their own theory.

“It’s rare for an organization to be that direct in state-mandated oversight in streams. Because of that rarity, we, at NASDA, believe it’s an overreach that’s political in nature—it isn’t right,” McKinney says.

While some can see merit in a lawsuit and repeal, Fox says there are repercussions that need to be considered.

WOTUS Repeal Repercussions

If the repeal effort is successful, Fox warned it would put the pre-2015 definition of WOTUS back into effect without some of the updates the Biden administration included in its latest definition.

Fox said it would remove the “significant nexus standard” and would remove exemptions for artificial ponds for previously converted cropland.

The CRA effort also would bar EPA from pursuing future regs that are substantially similar to the one that would be removed by the action.

Supreme Court Tees Up on WOTUS

The House last week  has already passed (227-198) its WOTUS rule resolution and it’s up for a Senate vote. The White House has pledged a veto of the measure, should it reach President Joe Biden’s desk.

The final say on this matter will rest with the Supreme Court, whose decision is awaited.

What You Might Not Know

CRA's language against the regulation is prescribed and brief. It essentially says Congress disapproves the regulation.

Of course, the Biden administration will want to find arguments to keep Members from voting for the resolution but, really, all the administration is saying is the regulation would no longer be in place. The administration fears it could pass and the president would need to veto another bipartisan bill.