House Republicans are attempting to override President Biden’s veto of H.J. Res 27, a resolution that used the Congressional Review Act to nullify yet another reckless rule submitted by the Biden Administration. The Biden Administration's decision to change the definition of the Waters of the United States (WOTUS) to include everything from streams to small creeks and puddles expands unelected bureaucrats' control over families, small businesses, farmers, ranchers, homebuilders, infrastructure builders, and states and local communities across the country.
BACKGROUND ON WATERS OF THE UNITED STATES:
The 1972 Clean Water Act (CWA) established federal jurisdiction over navigable waters, defined in the CWA as “waters of the United States” (WOTUS). However, the CWA did not clearly define which bodies of water qualify as WOTUS. The CWA instead left it to the Environmental Protection Agency (EPA) and the Army Corps of Engineers to define which waters are WOTUS and subject to federal rules and regulations, including costly environmental compliance.
As such, WOTUS regulations have been redefined over the years and resulted in regulatory burdens and ambiguity for small businesses, manufacturers, farmers, home and infrastructure builders, local communities, water districts, and everyday Americans.
Throughout the years, the executive branch has attempted to clarify WOTUS through redefinition. Various WOTUS definitions have been the subject of litigation in the Supreme Court.
In 2015 under the Obama Administration, WOTUS relied heavily upon what is known as a Significant Nexus Test created by Justice Anthony Kennedy in a solo concurring opinion in the 2006 case Rapanos v. United States. The Significant Nexus Test allowed for a broad definition of WOTUS, case-by-case determinations, and significant ambiguity. The Trump Administration revised the definition through the 2020 Navigable Water Protection Rule which moved away from the utilization of the Significant Nexus Test by more clearly and narrowly defining what qualified as WOTUS and what did not, aligning closer with the opinion of Justice Antonin Scalia in Rapanos. However, the Biden Administration overturned the Trump Rule and once again created a state of regulatory uncertainty by returning to the Significant Nexus Test and more jurisdictional determinations.
The Biden Administration then released their redefinition of the rule on December 30, 2022, at the end of the year and the middle of the holiday season. It will create additional uncertainty and overly burdensome regulations for Americans. Additionally, this new rule was announced while SCOTUS is deliberating Sackett vs. EPA which could result in a court issued redefinition of WOTUS, requiring the rule to be changed once again.
