Congressional Republicans are trying to repeal the Biden administration's recently finalized definition of "waters of the United States" on the grounds that it creates regulatory uncertainty and is bad for business and property owners.
House and Senate Republicans introduced Congressional Review Act resolutions Thursday that seek to cancel WOTUS, which governs how the broadly the Environmental Protection Agency and Army Corps of Engineers can regulate bodies of water under the Clean Water Act.
EPA and the Army Corps finalized WOTUS at the tail end of last year, effectively bringing back the definition as it was before 2015 with some updates to “reflect existing Supreme Court decisions, the latest science, and the agencies’ technical expertise.”
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Republicans argue the rule is too onerous and would make it too difficult for property owners and businesses to perform basic work like clearing ditches.
WOTUS defines which "navigable waters" are subject to federal regulation, which has extended beyond rivers and lakes to others bodies, including some kinds of ditches.
“With its overreaching navigable waters rule, the Biden administration upended regulatory certainty and placed unnecessary burdens directly on millions of Americans,” said Senate Environment and Public Works Committee Ranking Member Shelley Moore Capito (R-WV).
Rep. Sam Graves (R-MO), chair of the Transportation and Infrastructure Committee, led the House effort.
House Republicans had recently requested that EPA and the Army Corps of Engineers rescind the WOTUS rule and to wait until the Supreme Court issues a ruling in Sackett v. EPA before finalizing a definition.
The Sackett case involves an Idaho couple that ran afoul of WOTUS while seeking to build a house on their property. The court heard argument in the case in October, which challenges the scope WOTUS, and could issue an opinion over the next few months.
The agencies got ahead of the pending ruling by finalizing WOTUS on Dec. 30, more than 100 House Republicans said in a letter sent to EPA and the Army last month.
EPA stood by the rule when it was finalized in December, saying the pre-2015 rule was durable and in place for several decades.
Sen. Tom Carper (D-DE), Capito's counterpart on the Environment and Public Works Committee, said he supported the rule and was hopeful it "will prove to be durable, unlike those from previous administrations."
Neither Trump-era nor Obama-era changes to WOTUS have survived court challenges, which drove the Biden EPA to put the pre-2015 definition back in place for now.
The Biden EPA does intend to return to WOTUS with a version of its own, expecting a new proposed rule in November.
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Republicans have pushed other resolutions to repeal agency rulemakings. The conference, along with Sen. Joe Manchin (D-WV) advanced a Congressional Review Act resolution Wednesday that would repeal a Labor Department rule allowing allow fiduciaries to weigh ESG factors when making investment decisions for U.S. retirement accounts.