The Biden administration’s controversial new Waters of the U.S. (WOTUS) rule, initially issued on Dec. 30, 2022, went into effect throughout most of the country on March 20. The rule redefines and expands the scope of waters protected by the federal government under the Clean Water Act (CWA), repealing the Trump administration’s Waters of the U.S. definition (known as the Navigable Waters Protection Rule) and largely reverting to the pre-2015 definition.
Twenty-five governors from across the nation sent a letter to the White House on Jan. 31 voicing strong opposition to the new rule. Under the Congressional Review Act, a resolution sponsored by Sen. Shelley Moore Capito (R-West Virginia) and Rep. Sam Graves (R-Missouri) for Congress to reject the new Waters of the U.S. rule received bipartisan support to pass the House on March 9 by a vote of 227-198, and the Senate on March 29 by a vote of 53-43. President Joe Biden is expected to veto the resolution, which would take a two-thirds congressional vote to override. As of press time, no word has come from the White House on the resolution.
On March 19, one day before the Waters of the U.S. rule was set to become final, Judge Jeffrey Brown of the U.S. District Court for the Southern District of Texas issued an order blocking the rule from being implemented in Idaho and Texas, concluding that those two states had met the burden necessary to enjoin the rule within their boundaries. However, the rule still went into effect everywhere else in the country as scheduled on March 20.
All this has happened as a U.S. Supreme Court ruling is anticipated later this year in the case of Sackett v. EPA. The court’s decision on that case could potentially alter many of the principles guiding federal decisions on whether the CWA applies to certain waters and wetlands. The 2023 Farm Bill also looms as being impacted by the final decision regarding the new Waters of the U.S. rule.
According to the federal government’s regulatory agenda published in December 2022, the Biden administration plans to propose a second new Waters of the U.S. definition sometime this fall, which the EPA would finalize in 2024.
Environmentalist groups and the Biden administration have long pushed to expand the definition of “waters of the U.S.” in an effort to protect more waterways from pollution. The agriculture and fossil fuel industries, on the other hand, have warned against the negative impacts federal overreach under the CWA has on farmers, builders and businesses. Under each of the Obama, Trump and Biden administrations, the EPA has made significant changes to its Waters of the U.S. definition, giving rise to extensive confusion and criticism from many, including the National Cattlemen’s Beef Association (NCBA).
In January, the NCBA filed technical comments on the rule, arguing that federal regulation of small, isolated and temporary water features would disrupt normal agricultural operations and interfere with producers’ abilities to improve their land. Later, the NCBA sought a nationwide preliminary injunction to prevent the federal government from implementing the rule until Sackett v. EPA is decided, leading to the Texas Southern District Court’s decision to block the rule in Texas and Idaho.
“This latest WOTUS rule will place more burdens on family farms and ranches, drive up costs and prevent cattle producers like me from making investments in our land,” NCBA President Todd Wilkinson said in a statement. “While we appreciate the court’s injunction of the rule in Texas and Idaho, we are strongly disappointed in the decision to keep this WOTUS rule in place in 48 states.”
