WASHINGTON, D.C. – U.S. Senator Shelley Moore Capito (R-W.Va.), Ranking Member of the Senate Environment and Public Works (EPW) Committee, today led all 48 of her Senate Republican colleagues in introducing a formal challenge to the Biden administration’s Waters of the United States (WOTUS) rule through a Congressional Review Act (CRA) joint resolution of disapproval.

The resolution comes after the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers announced a new rule in December 2022 repealing the Navigable Waters Protection Rule (NWPR), and changing the definition of Waters of the United States in a way that will expand federal regulatory authority.

“With its overreaching navigable waters rule, the Biden administration upended regulatory certainty and placed unnecessary burdens directly on millions of Americans,” Ranking Member Capito said. “This Congressional Review Act resolution of disapproval will give every member of Congress the chance to stand with farmers, ranchers, landowners, and builders, and protect future transportation, infrastructure, and energy projects of all kinds in their states. I appreciate the widespread support we’ve received in both the Senate and House, and across the country, as we fight to place an important check on this misguided overreach from the Biden administration.”

As Ranking Member Capito introduced the CRA resolution in the Senate, US. Rep. Sam Graves (R-Mo.-06), chairman of the House Committee on Transportation and Infrastructure (T&I), simultaneously led his colleagues in introducing an identical resolution in the House.

Cosponsors of Ranking Member Capito’s resolution include U.S. Senators Mitch McConnell (R-Ky.), John Thune (R-S.D.), John Barrasso (R-Wyo.), Joni Ernst (R-Iowa), Steve Daines (R-Mont.), Marsha Blackburn (R-Tenn.), John Boozman (R-Ark.), Mike Braun (R-Ind.), Katie Britt (R-Ala.), Ted Budd (R-N.C.), Bill Cassidy (R-La.), Susan Collins (R-Maine), John Cornyn (R-Texas), Tom Cotton (R-Ark.), Kevin Cramer (R-N.D.), Mike Crapo (R-Idaho), Ted Cruz (R-Texas), Deb Fischer (R-Neb.), Lindsey Graham (R-S.C.), Chuck Grassley (R-Iowa), Bill Hagerty (R-Tenn.), Josh Hawley (R-Mo.), John Hoeven (R-N.D.), Cindy Hyde-Smith (R-Miss.), Ron Johnson (R-Wis.), John Kennedy (R-La.), James Lankford (R-Okla.), Mike Lee (R-Utah), Cynthia Lummis (R-Wyo.), Roger Marshall (R-Kan.), Jerry Moran (R-Kan.), Markwayne Mullin (R-Okla.), Lisa Murkowski (R-Alaska), Rand Paul (R-Ky.), Pete Ricketts (R-Neb.), Jim Risch (R-Idaho), Mitt Romney (R-Utah), Mike Rounds (R-S.D.), Marco Rubio (R-Fla.), Eric Schmitt (R-Mo.), Rick Scott (R-Fla.), Tim Scott (R-S.C.), Dan Sullivan (R-Alaska), Thom Tillis (R-N.C.), Tommy Tuberville (R-Ala.), J.D. Vance (R-Ohio), Roger Wicker (R-Miss.), and Todd Young (R-Ind.).

Full text of the resolution can be found here.

A one-pager can be found here.

BACKGROUND ON WOTUS, NWPR:

In 2015, the Obama administration finalized a rule that expanded the definition of WOTUS, creating confusion and burdensome red tape, especially for West Virginia’s agriculture, construction, and coal industries. 

The Trump administration released a proposed rule to replace the 2015 WOTUS rule with a new one that provided much-needed predictability and certainty for farmers by establishing clear and reasonable definitions of what qualifies as a “water of the United States.” The NWPR was finalized in 2020.

On day one of his administration, President Biden signed an executive order to begin the process of rolling back the Trump administration’s NWPR.

In December 2022, the EPA issued a new rule repealing the NWPR and changing the definition of WOTUS in a way that will expand federal regulatory authority.

HISTORY OF CAPITO’S ACTIONS ON WOTUS, NWPR

In September 2022, Ranking Member Capito led 46 of her Republican colleagues in introducing the START Act, comprehensive federal regulatory permitting and project review reform legislation that would have codified the Trump administration’s NWPR definition of “waters of the United States” under the Clean Water Act.

In April 2022, Ranking Member Capito led 45 senators and 154 House members on an amicus curiae brief filed in the U.S. Supreme Court in support of the petitioners in the pending case Sackett v. EPA, which is directly related to how much authority the federal government has over states and private citizens to regulate “waters of the United States” under the Clean Water Act.

In February 2022, Ranking Member Capito led her Republican colleagues on the EPW committee in a letter to EPA Administrator Michael Regan and Assistant Secretary of the Army for Civil Works Michael Connor specifically requesting the Biden administration immediately halt plans to finalize a novel definition of WOTUS under the Clean Water Act until after the Supreme Court’s ruling in Sackett v. EPA.

In November 2021, Ranking Member Capito issued a statement expressing her dismay at the announcement of the first step in EPA’s two-step process to replace the Trump administration’s 2020 NWPR and promulgate a new definition of WOTUS.
In August 2021, Ranking Member Capito sent a letter to EPA Administrator Regan and Jaime Pinkham, the Acting Assistant Secretary of the Army for Civil Works, asking for a more complete and comprehensive stakeholder engagement process regarding repealing and replacing NWPR. Specifically, Ranking Member Capito requested an extended public comment period for receiving recommendations.
That letter followed Ranking Member Capito’s previous letter requesting additional clarity on the basis for the decision to repeal and replace NWPR and yet another letter, which she led her Republican colleagues on the committee in sending, requesting increased transparency into the process of repealing NWPR.
In July 2021, Michael Connor, President Biden’s nominee to lead the Corps, admitted he wasn’t aware of any specific environmental degradation under NWPR.
Ranking Member Capito, along with Senators Cramer, Lummis, Inhofe, and Wicker, also introduced legislation in July 2021 that would codify NWPR.

In February 2021, the Senate passed an amendment introduced by Senator Capito that upheld the Trump administration’s NWPR.

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