Newly updated WOTUS rule by Biden administration still doesn’t cut it, say Republicans

GOP lawmakers in Congress this week said they still aren’t satisfied with the Biden administration’s revised “waters of the United States” (WOTUS) rule.

The U.S. Environmental Protection Agency (EPA) and the U.S. Department of the Army on Aug. 29 announced a final rule amending this year’s WOTUS definition to conform with the U.S. Supreme Court’s decision in Sackett v. EPA. The High Court in May ruled against the administration’s prior definition, saying it was an illegal federal overreach that targeted farmers, ranchers, builders and landowners.

U.S. Sen. Shelley Moore Capito (R-WV) and U.S. Reps. Glenn “GT” Thompson (R-PA) and Sam Graves (R-MO) said the administration’s new rule isn’t any better.

“Despite our warnings that the Biden WOTUS rule was clear regulatory overreach and the Supreme Court soundly rejecting its [WOTUS] definition, the administration continues to take an unserious approach to issuing a durable rule that provides stability to millions of Americans,” said Sen. Capito, ranking member of the U.S. Senate Environment and Public Works Committee.

“I’m disappointed this rushed rule lacks public outreach and real transparency, results in a definition that is at odds with the law, and will likely be rejected once again in the courts,” Sen. Capito said on Tuesday.

Rep. Thompson, chairman of the U.S. House Agriculture Committee, expressed similar disdain, noting that America’s farmers, ranchers, and landowners are under regulatory assault from the Biden administration. 

“The Supreme Court rightfully curtailed EPA’s regulatory overreach, however, EPA’s bureaucratic sleight-of-hand circumventing the rulemaking process leaves the door open to agency abuse and regulatory and legal uncertainty for American agriculture,” said Rep. Thompson. “Our nation’s farmers, ranchers, and landowners are excellent stewards of their land and understand that clean water and private property rights can coexist without burdensome overreach from the federal government.”

Likewise, Rep. Graves, chairman of the U.S. House Transportation and Infrastructure Committee, along with U.S. Rep. David Rouzer (R-NC), issued a joint statement denouncing the updated WOTUS rule.

“We said from the very beginning that the Biden administration should have waited on Sackett, knowing how much of an impact the decision could have on their costly, burdensome, and overreaching WOTUS rule,” the lawmakers said. “Unfortunately, the Biden administration’s revised rule barely pays lip service to the Sackett decision.”

Rep. Graves and his colleague pointed out that the High Court was clear that the Clean Water Act overreach is illegal, but the administration is now trying to make Sackett fit with a rule that never should have been issued in the first place, according to their joint statement. 

“This revised rule ignores fundamental concerns laid out in Sackett and is a missed opportunity to finally end long-standing confusion over what constitutes a WOTUS,” Rep. Graves and his colleague said. “The Supreme Court’s ruling in Sackett was a decisive win for America’s farmers, small businesses, property owners, and those who build our infrastructure.”

While the May 25 rule from the EPA and Army defining WOTUS was not directly before the Supreme Court, the decision in Sackett made clear that certain aspects of the 2023 rule are invalid, the departments said on Tuesday.

Their amendments are limited and change only parts of the new rule that are invalid under the Sackett v. EPA decision. For example, the final rule removes the significant nexus test from consideration when identifying tributaries and other waters as federally protected, they said.

The EPA and Army also said that the Supreme Court’s decision in Sackett v. EPA created uncertainty for implementing the Clean Water Act and their updated ruling will provide clarity and a path forward consistent with the ruling.

“With this action, the Army Corps of Engineers will resume issuing all jurisdictional determinations,” according to the EPA. “Because the sole purpose of this rule is to amend specific provisions of the 2023 rule that are invalid under Sackett, the rule will take effect immediately.”