TUESDAY, APRIL 11, 2023
Last week, President Joe Biden vetoed a congressional resolution that targeted blocking the U.S. Environmental Protection Agency’s updated “waters of the United States” (WOTUS) rule. At the end of last month, the House and the Senate reportedly used the Congressional Review Act to enact a measure to overturn the water rule.
WOTUS Background
Part of 1972 amendments made to the Clean Water Act, federal jurisdiction was established over “navigable waters,” defined as the “waters of the United States.” The Clean Water Act prohibits the discharge of pollutants from a point source into “navigable waters” unless otherwise authorized under the Act.
“Navigable waters” are defined in the Act as “the waters of the United States, including the territorial seas.” While this is a threshold term establishing the geographic scope of federal jurisdiction under the Clean Water Act, the term “waters of the United States” is not defined by the Act but has been defined by the agencies in regulations since the 1970s.
The Clean Water Act does not define WOTUS, but provides authority for the EPA and the Department of the Army to define WOTUS by regulation. In the mid-1980s, both agencies declared a definition of WOTUS.
Additionally, the EPA reports, three Supreme Court decisions have addressed the definitions of WOTUS, including United States v. Riverside Bayview Homes, Inc. in 1985; Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers in 2001; and Rapanos v. United States in 2006.
Those on both sides of the clean #water issue now are focusing more intently on the U.S. Supreme Court @ENRnews https://t.co/qHX7kFEKE5
— BC Water News (@BCWaterNews) April 10, 2023
Regulations defining these WOTUS were amended in 2015 in the Clean Water Rule: Definition of “Waters of the United States,” but those were repealed by the 2019 rule that reinstated the 1980s regulations, implemented consistent with the U.S. Supreme Court cases and applicable guidance.
Then, once again in 2020, the 2019 rule was replaced with the Navigable Waters Protection Rule. However, an order from the U.S. District Court for the District of Arizona in 2021 halted the implementation of the NWPR nationwide and interpreted WOTUS as its pre-2015 regulatory regime.
In June 2021, the EPA and the Department of the Army announced their intent to revise the definition of WOTUS. Later that year, in November, they announced the signing of a proposed rule revising this definition.
Rule Update, Lawsuits
At the end of December, the EPA and the Army announced the final rule establishing a durable definition of WOTUS to reduce uncertainty from changing regulatory definitions, protect people’s health and support economic opportunity.
The final rule reportedly restores essential water protections that were in place prior to 2015 under the Clean Water Act for traditional navigable waters, the territorial seas and interstate waters, as well as upstream water resources that significantly affect those waters.
The action is anticipated to strengthen fundamental protections for waters that are sources of drinking water while supporting agriculture, local economies and downstream communities.
According to the release from the EPA, the rule reportedly establishes a durable definition of “waters of the United States” that is grounded in the authority provided by Congress in the Clean Water Act, the best available science, and extensive implementation experience stewarding the nation’s waters.
It also returns to a “reasonable and familiar” framework founded on the pre-2015 definition with updates to reflect existing Supreme Court decisions, the latest science and the agencies’ technical expertise. It establishes limits that appropriately draw the boundary of waters subject to federal protection.
Additionally, it will cover those waters that Congress fundamentally sought to protect in the Clean Water Act, including traditional navigable waters, the territorial seas, interstate waters, as well as upstream water resources that significantly affect those waters.
The full final rule, published in the Federal Register on Jan. 18, can be found here. The action is anticipated to take effect on March 20.
However, in January, the Associated General Contractors of America announced that it was joining a range of employer groups to file a lawsuit to block the rule, noting that the new measure allegedly violates the Clean Water Act, the Administrative Procedures Act and the U.S. Constitution’s Due Process and Commerce Clauses.
The legal action was filed in the U.S. District Court’s Southern District of Texas on Jan. 18, seeking to have the court declare the new rule unlawful and vacate the measure. It also notes that the rule was released despite the fact that the Supreme Court is currently weighing the scope of the Clean Water Act as part of the Sackett v. EPA case, which would render elements of the new rule irrelevant depending on that case ruling.
Additionally, the complaint reportedly argues that the Biden administration violated the Administrative Procedures Act, noting that the EPA’s rationale for its new rule is “arbitrary, capricious and an abuse of discretion.”
The groups alleged that the agencies used a “flawed" cost-benefit analysis and failed to solicit or consider alternative flexibility proposals as they are required to by law. The complaint also adds that the WOTUS rule violates the constitution’s Due Process and Commerce Clauses.
The Coalition, in addition to AGC, consists of the American Farm Bureau Federation; American Petroleum Institute; American Road and Transportation Builders Association; Leading Builders of America; Matagorda County Farm Bureau; National Association of Home Builders; National Association of Realtors; National Cattlemen’s Beef Association; National Corn Growers Association; National Mining Association; National Pork Producers Council; National Stone, Sand and Gravel Association; Public Lands Council; Texas Farm Bureau; and the U.S. Poultry and Egg Association.
The full complaint can be read here.
Texas also filed a lawsuit in January that argued the updated rule “seeks to subject land with isolated wetlands, ephemeral streams and off-channel reservoirs to an expensive and burdensome federal permitting process,” as well as disrupt the state’s “development and management of its own energy, agriculture, and transportation infrastructure.”
Additionally, according to reports, at least 26 states and the coalition of agricultural and industry groups had joined at least five lawsuits seeking to vacate the rule at the time. The EPA, however, said that the lawsuits that have been filed are aimed at halting the updated rule that isn’t that much different from the “status quo.”
Additionally, the agency noted that industry groups claiming they will face irreparable harms from expected costs of complying with the new rule haven’t demonstrated how they’ll be harmed, because those compliance costs come from existing regulations already in effect, not the new rule.
WOTUS Rule Veto
At the end of March, the Congressional Review Act resolution of disapproval, citing that the president was “overreaching” with the rule, was passed by the Senate and the House of Representatives with bipartisan support by a vote of 53-43 and 227-198, respectively.
However, last week, Biden vetoed the bill to block the clean water rule, noting that the measure would leave an unclear definition of WOTUS.
“The 2023 revised definition of ‘Waters of the United States’ carefully sets the bounds for which bodies of water are protected under the Clean Water Act. It provides clear rules of the road that will help advance infrastructure projects, economic investments, and agricultural activities—all while protecting water quality and public health,” wrote Biden in his veto statement.
“The resolution would leave Americans without a clear definition of ‘Waters of the United States.’ The increased uncertainty caused by H.J. Res. 27 would threaten economic growth, including for agriculture, local economies, and downstream communities. Farmers would be left wondering whether artificially irrigated areas remain excluded or not. Construction crews would be left wondering whether their waterfilled gravel pits remain excluded or not. The resolution would also negatively affect tens of millions of United States households that depend on healthy wetlands and streams.”
U.S. Senator Shelley Moore Capito, Ranking Member of the Senate Environment and Public Works (EPW) Committee, who led the bill alongside U.S. Representative and House Transportation and Infrastructure Committee Chairman Sam Graves, released a statement following the veto expressing that she was “disappointed.”
“By vetoing this Congressional Review Act resolution of disapproval, President Biden is ignoring the will of a bipartisan majority in Congress, leaving millions of Americans in limbo, and crippling future energy and infrastructure projects with red tape,” she wrote.
“There’s a reason those who work in agriculture, building, mining and small businesses of all kinds across America strongly supported our effort to block the Biden waters rule, and I’m disappointed the president chose to stand by his blatant executive overreach.”
Tagged categories: Environmental Controls; Environmental Protection Agency (EPA); EPA; Government; Lawsuits; President Biden; Program/Project Management; Regulations; Water/Wastewater
