“As American families and businesses continue suffering under the economic crises caused by the disastrous Biden policies of the last two years, this Administration has inexplicably decided to move the country back toward the costly and burdensome WOTUS regulations of the past,” said Graves.  “In an unnecessary drain on federal resources, the Administration clumsily put forward its rule before the Supreme Court has issued a ruling in the Sackett case, which will affect and alter what the Administration has put forward.  Congress has the authority and responsibility to review onerous rules like this one handed down from the Executive Branch, and I hope our colleagues on both sides of the aisle will join in this effort to preserve regulatory clarity and prevent overzealous, unnecessary, and broadly defined federal power.”

“The Biden Administration’s WOTUS rule is both poor policy and badly timed,” said Rouzer.  “It will once again place overly burdensome regulations on farm families, small businesses, infrastructure projects, and entire communities – further harming our already struggling economy.  Rushing to issue a new rule despite the Supreme Court’s forthcoming decision is not wise.  It will only create additional confusion and uncertainty.  This new EPA rule needs to be rescinded so that Americans across the country are protected from subjective regulatory overreach.  Utilization of the Congressional Review Act is the best and most appropriate way for the House to make its collective voice heard and push back.  I’m proud to lead my colleagues in Congress as we work to terminate onerous rules like this one.”

The House Joint Resolution introduced would terminate the Biden WOTUS rulemaking utilizing the CRA, which provides a mechanism for Congress to overturn certain final agency actions.  

On January 18, 2023, the Environmental Protection Administration and U.S. Army Corps of Engineers published the Administration’s long-expected WOTUS rule, which:

• Voids the 2020 Navigable Waters Protection Rule, a rule that had provided much-needed clarity and certainty for the regulated community throughout the Nation;
• Reverts back to the Obama Administration’s era of greater uncertainty and expansive federal jurisdiction to regulate navigable waters under the Clean Water Act, including wetlands, ephemeral streams, and ditches;
• Moves the federal government towards a regulatory regime under which agency bureaucrats decide what is regulated, rather than working with those who will be affected, at a time when the Supreme Court has yet to issue an opinion on a pending WOTUS case (Sackett) that will directly impact the rule.

Supporters of the resolution, primarily Republicans, say that nullifying the 2023 WOTUS rule is needed to allow U.S. farmers, builders, landowners and businesses, as well as the U.S. economy, to grow. They say the 2023 Biden rule, like the 2015 Obama rule before it, places too wide a swath of water under the jurisdictional scope of the Clean Water Act, arguing that ephemeral water (puddles and rivulets that occur only when it rains and disappear afterwards) were never intended to be included in the definition of "navigable waters." They say the 2023 WOTUS rule would add to regulatory delays, increase permitting costs and legal fees, and drive up the costs to grow food, create energy, and build critical infrastructure. They point to a Small Business Administration comment on the new rule definition, which estimates it would increase Section 404 permit costs in 26 states alone between $109 million and $276 million.

They also say the Biden administration should have waited for the Supreme Court to rule on the Sackett case before proposing or issuing a new WOTUS definition, since the court's decision could directly impact how WOTUS is to be defined. It would have made much more sense, they say, to wait for the decision and write a rule informed by that case.

In Support of the EPA WOTUS Rule:

"The Environmental Protection Agency (EPA) and the Department of the Army (“the agencies”) are finalizing a rule defining the scope of waters protected under the Clean Water Act. In developing this rule, the agencies considered the text of the relevant provisions of the Clean Water Act and the statute as a whole, the scientific record, relevant Supreme Court case law, and the agencies' experience and technical expertise after more than 45 years of implementing the longstanding pre-2015 regulations defining “waters of the United States.”

This final rule advances the objective of the Clean Water Act and ensures critical protections for the nation's vital water resources, which support public health, environmental protection, agricultural activity, and economic growth across the United States."

Do you think Congress should override the veto on H.J.Res.27, to disapprove of the Waters of the United States Rule?

More About Waters of the United States

What are "Waters of the United States"?

The 1972 amendments to the Clean Water Act established federal jurisdiction over “navigable waters,” defined in the Act as the “waters of the United States” (CWA Section 502(7)). Many Clean Water Act programs apply only to “waters of the United States.” The Clean Water Act provides authority for EPA and the U.S. Department of the Army (Army) to define “waters of the United States” in regulations. 

History of "Waters of the United States"

“Waters of the United States” is a threshold term in the Clean Water Act and establishes the geographic scope of federal jurisdiction under the Act. Clean Water Act programs, including Water Quality Standards, TMDLs, and sections 311, 402, and 404 address “navigable waters,” defined in the statute as “the waters of the United States, including the territorial seas.”

The Clean Water Act does not define “waters of the United States”; rather, it provides authority for EPA and the U.S. Department of the Army to define “waters of the United States” in regulations.

Since the 1970s, EPA and the Department of the Army have defined “waters of the United States” by regulation. In the mid-1980s, both agencies promulgated a definition of “waters of the United States.”

Three Supreme Court decisions have addressed the definition of “waters of the United States.” In 1985, in United States v. Riverside Bayview Homes, Inc., the U.S. Supreme Court deferred to the Corps’ assertion of jurisdiction over wetlands adjacent to a traditional navigable water, stating that adjacent wetlands may be regulated as "waters of the United States" because they are ‘‘inseparably bound up’’ with navigable waters and ‘‘in the majority of cases’’ have ‘‘significant effects on water quality and the aquatic ecosystem’’ in those waters.

In Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) in 2001, a 5-4 Court held that the use of "nonnavigable, isolated, intrastate waters" by migratory birds was not by itself a sufficient basis for the exercise of Federal authority under the Clean Water Act. SWANCC, 531 U.S. at 172. The Court noted that in Riverside Bayview, it had "found that Congress' concern for the protection of water quality and aquatic ecosystems indicated its intent to regulate wetlands 'inseparably bound up with the "waters" of the United States'" and that "[i]t was the significant nexus between the wetlands and 'navigable waters' that informed [the Court's] reading of the Clean Water Act" in that case. Id. at 167. In 2001 and again in 2003, the agencies developed guidance to address the definition of “waters of the United States” under the Clean Water Act following the SWANCC decision.

The Court most recently interpreted the term ‘‘waters of the United States’’ in Rapanos v. United States in 2006. A four-Justice plurality stated that ‘‘waters of the United States’’ ‘‘include[ ] only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams[,] . . . oceans, rivers, [and] lakes,’” and ‘‘wetlands with a continuous surface connection’’ to a ‘‘relatively permanent body of water connected to traditional interstate navigable waters.’’ In a concurring opinion, Justice Kennedy took a different approach, concluding that ‘‘to constitute ‘navigable waters’ under the Act, a water or wetland must possess a ‘significant nexus’ to waters that are or were navigable in fact or that could reasonably be so made.’’ He stated that adjacent wetlands possess the requisite significant nexus if the wetlands ‘‘either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’’’ The four dissenting Justices, who would have affirmed the court of appeals' application of the agencies' existing regulation, concluded that the term "waters of the United States" encompasses all tributaries and wetlands that satisfy either the plurality's standard or Justice Kennedy's. Following Rapanos, in 2007 and again in 2008, the agencies developed additional guidance for implementing the "waters of the United States" definition.

The agencies amended their regulations defining “waters of the United States” in 2015 in the Clean Water Rule: Definition of "Waters of the United States." 

The 2015 Clean Water Rule was repealed by the 2019 Rule, which reinstated the 1980s regulations, implemented consistent with the U.S. Supreme Court cases and applicable guidance.

The agencies replaced the 2019 Rule with the Navigable Waters Protection Rule (NWPR) in 2020. The agencies are in receipt of the U.S. District Court for the District of Arizona's August 30, 2021 order vacating and remanding the Navigable Waters Protection Rule in the case of Pascua Yaqui Tribe v. U.S. Environmental Protection Agency. In light of this order, the agencies have halted implementation of the NWPR nationwide and are interpreting "waters of the United States" consistent with the pre-2015 regulatory regime.

For additional information, see the History of the Effects of Litigation Over Recent Definitions of "Waters of the United States" (pdf) (66.74 KB)

On December 30, 2022, the agencies announced the final "Revised Definition of 'Waters of the United States'" rule. On January 18, 2023, the rule was published in the Federal Register; the rule will be effective on March 20, 2023. More information about the final rule is available here.

Current Implementation of “Waters of the United States”

The Environmental Protection Agency and U.S. Army Corps of Engineers ("the agencies") are in receipt of the U.S. District Court for the District of Arizona’s August 30, 2021, order vacating and remanding the Navigable Waters Protection Rule (NWPR) in the case of Pascua Yaqui Tribe v. U.S. Environmental Protection Agency. In light of this order, the agencies have halted implementation of the NWPR nationwide and are interpreting “waters of the United States” consistent with the pre-2015 regulatory regime. 

On December 30, 2022, the agencies announced the final "Revised Definition of 'Waters of the United States'" rule. On January 18, 2023, the rule was published in the Federal Register

; the rule will be effective on March 20, 2023. The agencies developed this rule with consideration of the relevant provisions of the Clean Water Act and the statute as a whole, relevant Supreme Court case law, and the agencies’ technical expertise after more than 45 years of implementing the longstanding pre-2015 “waters of the United States” framework. This rule also considers the best available science and extensive public comment to establish a definition of “waters of the United States” that supports public health, environmental protection, agricultural activity, and economic growth. More information about the final rule is available here.

If a state, tribe, or an entity has specific questions about a pending jurisdictional determination or permit, please contact a local U.S. Army Corps of Engineers District office or EPA. 

Learn more about the agencies' current implementation of "waters of the United States."

• Supreme Court decision in National Association of Manufacturers v. Department of Defense et al. – January 22, 2018
• Supreme Court decision in Rapanos v. U.S. and Carabell v. U.S. - June 19, 2006
• Supreme Court decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps - January 9, 2001
• Supreme Court decision in United States v. Riverside Bayview Homes, Inc. - December 4, 1985

(Source: EPA)

Background

The Congressional Review Act of 1996 (PL 104-121) established a process through which Congress can overturn regulations issued by federal agencies by enacting a joint resolution of disapproval.

Under the act, if a resolution of disapproval is introduced within 60 days of when an agency issues a final rule and submits it to Congress (exclusive of adjournment periods of more than three days), the disapproval resolution may be considered under expedited procedures — including the prohibition of filibusters in the Senate, thereby allowing adoption by simple majority vote. If a disapproval resolution is enacted into law, it prevents the rule from going into effect and the agency is prohibited from ever issuing any substantially similar rule unless Congress specifically authorizes it.

Prior to 2017, only one disapproval resolution had ever been enacted, in 2001. But using certain new-year "carry over" authority under the Congressional Review Act, congressional Republicans in 2017 targeted a series of rules and regulations issued by the Obama administration in 2016, enacting more than a dozen disapproval resolutions with President Donald Trump's signature. When President Biden assumed office in 2021, congressional Democrats targeted certain rules issued by the Trump administration in 2020.

The Clean Water Act prohibits the discharge of certain pollutants in "the waters of the United States, including the territorial seas" without a permit. However, the statute does not define "waters of the United States" (WOTUS), leaving the Army Corps of Engineers and EPA with that task. According to the Congressional Research Service (CRS), Congress, the courts, stakeholders and those two agencies have long debated how to interpret the term and thus determine the scope of waters that are federally regulated under the Clean Water Act.

 Prior to 2015, regulations issued by the Corps in 1986 and EPA in 1988 were in effect. The Corps and EPA also issued guidance in 2003 and 2008 to clarify the scope of the Clean Water Act. Several Supreme Court decisions, most notably Rapanos v. United States in 2006, prompted the two agencies to consider changes to further clarify the scope of waters considered to be "waters of the United States."

In 2015 under the Obama administration, the Corps and EPA issued the Clean Water Rule, which redefined WOTUS. While the 2015 rule maintained the previous regulatory framework that sorted waters into three categories (those that are categorically WOTUS; those that may be deemed WOTUS on a case-by-case basis upon a finding of a "significant nexus" with traditionally navigable waters; and those that are categorically excluded from WOTUS), it also defined a new regulatory term — tributaries — and established criteria for determining when tributaries, waters and wetlands were WOTUS by virtue of being adjacent to regulated waters.

 The 2015 Clean Water Rule was quickly mired in litigation, and by the time President Trump took office in 2017 it had been stayed by the U.S. Court of Appeals for the Sixth Circuit, according to CRS. The Supreme Court later ruled that the Sixth Circuit lacked jurisdiction, thereby allowing the rule to become effective. But the Trump administration moved to repeal the rule and replace it with a new definition of WOTUS.

In April 2020 the Corps and EPA issued the Navigable Waters Protection Rule, which narrowed the definition of WOTUS and therefore the scope of waters and wetlands under federal jurisdiction. The 2020 rule eliminated the category of waters whose status would be determined on a case-by-case basis; excluded ephemeral features (i.e., those that flow or pool only in direct response to precipitation) including ephemeral tributaries; and more narrowly defined tributaries and adjacent wetlands while continuing to consider them part of WOTUS. This new rule also became the subject of litigation.

Shortly after taking office in 2021, President Biden issued an executive order intended to promote and protect public health and the environment by following science. It directed agencies to review regulations issued during the Trump administration that might be inconsistent with those goals and consider suspending, revising or rescinding those agency actions. In June 2021, the Corps and EPA announced that they intended to revise the definition of WOTUS, first restoring the rule as it existed prior to the 2015 Obama rule and then implementing a new regulatory definition.

On January 18, 2023, the Corps and EPA issued a new rule (the 2023 WOTUS Rule) to redefine "waters of the United States." The agencies asserted that their intent in issuing the 2023 WOTUS Rule was to redefine WOTUS in a durable regulation, updating the pre-2015 rules to reflect prior Supreme Court decisions, science, and the agencies' experience and technical expertise. According to CRS, the rule generally defines WOTUS more narrowly than the 2015 Clean Water Rule but more broadly than the 2020 Navigable Waters Protection Rule.

The Supreme Court is expected to issue a ruling later this year in a long-running dispute between Chantell and Michael Sackett and the EPA. In 2007 the couple began backfilling a parcel of land in Idaho, near Priest Lake and across the road from wetlands that feed the lake. EPA required the Sacketts to restore the site, and they sued EPA with the case working its way up through the courts and the Supreme Court in October 2022 hearing oral arguments.

CRS describes the Sacketts' petition to the Supreme Court as a request to revisit a previous WOTUS case heard by the court (Rapanos v. United States in 2006) and to focus on exactly what should be the controlling standard for determining whether waters or wetlands are subject to WOTUS jurisdiction. The petition asserted that review was appropriate in light of conflicts among the lower courts in applying Rapanos, the Corps' and EPA's failure to implement a workable and legally sound interpretation of that case, and the costs to regulated entities associated with resolving jurisdictional issues.

The Supreme Court decision in the Sackett case could have a minor or a profound impact on the 2023 WOTUS rule, depending on the scope of the court's ruling. CRS notes that the court could rule narrowly on whether one or both of the Rapanos tests provides a meaningful legal standard that can be applied to determine whether a body of water falls under the jurisdiction of the Clean Water Act, or it could provide a majority opinion for a specific definition of WOTUS.