- Republicans are fighting what they see as overreach in the Biden administration’s expansion of the Waters of the United States (WOTUS) Rule, which defines what “waters of the United States” are federally protected under the Clean Water Act.
- Texas Attorney General Ken Paxton filed a lawsuit in January and a motion for a preliminary injunction to halt the rule on Friday.
- The rule could be impacted by the pending Supreme Court case questioning the Clean Water Act’s definition of wetlands, Sackett v. Environmental Protection Agency.
Republicans are ramping up efforts to eliminate the Biden administration’s expansive Waters of the United States (WOTUS) Rule, which they say has a negative impact on landowners.
The rule, currently under review in the Supreme Court, defines what “waters of the United States” are federally protected under the Clean Water Act, a law that establishes boundaries and permit requirements for discharging pollutants into protected water. Under the Trump administration’s 2020 Navigable Waters Protection Rule, protected areas were scaled back, but the Biden administration’s WOTUS definition released Dec. 30 expanded the coverage; Texas Attorney General Ken Paxton filed a lawsuit against Biden’s WOTUS in late January, and almost 150 members of Congress introduced a resolution against it last week.
On Friday, Paxton filed a motion for a preliminary injunction to halt the WOTUS rule’s implementation after filing the initial lawsuit on Jan. 18, contending that the EPA expanded its power beyond the limit placed on it by Congress to regulate only “navigable waters.”
“The environmental extremists who wrote this unlawful rule have no interest in respecting our sovereignty or our natural resources,” said Paxton in a statement. “For this Administration, this isn’t about environmental protection—it’s about federal control over states like Texas, and we aren’t going to allow it.”
Without intervention, the new definition will take effect March 20, 2023. The issue hinges on the definition of “navigable waters,” or “waters of the United States,” which the Biden EPA’s WOTUS expands to include tributaries, impounds, and adjacent wetlands.
Charles Yates, an Attorney at the Pacific Legal Foundation, the law firm representing the plaintiffs in the ongoing Supreme Court case dealing with the rule, Sackett v. Environmental Protection Agency, told the Daily Caller News Foundation changing definitions burden landowners with “enormous expense.”
“The last three presidential administrations have failed to craft a regulatory definition of ‘navigable waters’ that both satisfies the requirements of the Clean Water Act and survives judicial review,” Yates said. “With each change, landowners have been forced to conform to an ever-shifting standard at enormous expense, and at pains of immense liability.”
The plaintiffs in Sackett are suing to build a house on land they own near Priest Lake, Idaho, which the EPA told them they cannot do because it contains wetlands. They’ve spent 15 years combating the EPA, according to the Pacific Legal Foundation. The court’s decision in Sackett will clarify whether wetlands are protected under the Clean Water Act and subject to EPA regulation.
“By refusing to wait for a decision in Sackett II, the Biden administration has brushed aside the freedom, security, and prosperity of millions of American landowners,” Yates continued. “Instead, it has decided to perpetuate this continuous game of regulatory ping-pong, piling confusion, on to fifteen years of confusion. There is no reason whatsoever to believe the Biden administration has got it right this time. And it is important that this confusing and illegal interim measure be put to a stop before even more damage is done.”
Meanwhile, Republicans continue to use other means to push back on the rule.
Last week, 147 members of Congress introduced a joint resolution disapproving of the Biden administration’s WOTUS rule through the Congressional Review Act (CRA), which, if passed, would void its authority. An identical resolution, led by Republican West Virginia Sen. Shelley Moore Capito, was introduced by 49 Senate Republicans.
The resolution has received widespread support from industry leaders like American Farm Bureau Federation President Zippy Duvall, National Mining Association President and CEO Rich Nolan, and the National Association of Manufacturers.
During the House Transportation & Infrastructure Committee’s Water Resources and Environment Subcommittee’s Wednesday hearing, Subcommittee Chairman David Rouzer said he was “disappointed” the Biden administration would force a new rule before the Supreme Court decision.
“This decision irresponsibly risks taxpayer resources and everyone’s time, as the Supreme Court could very well send the administration back to the drawing board on a WOTUS definition – ultimately creating even more confusion and uncertainty,” Rouzer said during his opening remarks.
“There’s no greater example of bureaucratic overreach under the Clean Water Act than with the regulatory nightmare of complying with and understanding the definition of a ‘water of the United States,’” he said. “For the purposes of what the Clean Water Act covers, this definition is crucial. It is used for determining a number of applications under the law, including state and tribal water quality certification programs, pollutant discharge permits, and oil spill prevention and planning programs.”
Todd F. Gaziano, Chief of Legal Policy and Strategic Research at the Pacific Legal Foundation, told the Daily Caller News Foundation that the Sackett Supreme Court case is the effort most likely to succeed in stopping the rule. While the resolution introduced in Congress is “worthy,” it is “ultimately subject to a presidential signature or veto.”
“[Sackett] won’t automatically wipe out every bit of the new WOTUS rule, but it will knock out some of the worst aspects of it and may require the EPA/Army Corps to start over again,” Gaziano said.
An EPA spokesperson said the agency has “nothing to add” as the cases are “pending litigation.”
Texas Attorney General Paxton did not immediately respond to a request for comment.
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