By Frank Giles
The Waters of the United States (WOTUS) rule has burbled back up from the regulatory depths. On Dec. 30, 2022, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers released a final rule to redefine WOTUS under the Clean Water Act. This marks the third attempt to define the term that started with the Obama administration’s initial attempt, which was walked back by the Trump administration. The Biden attempt follows more closely with the Obama administration’s original language.
Farm groups have raised alarms that the latest definition would cause uncertainty for agriculture, leaving growers with new costly regulatory hurdles and the threat of potential lawsuits. Rep. Glenn “GT” Thompson (R-PA), chairman of the House Committee on Agriculture, cosponsored a WOTUS resolution of disapproval under the Congressional Review Act (CRA) on Feb. 2.
“Farmers, ranchers and landowners deserve a WOTUS definition that is fair to agriculture and maintains the historical reach of the Clean Water Act — neither of which is accomplished by this rule,” Thompson said. “Rather than providing certainty, the Biden administration has exposed our rural communities to further ambiguity and regulatory burdens that hinder producers’ ability to provide a safe and affordable food supply.”
A similar measure was introduced in the Senate. Under the CRA, Congress can strike down a federal agency rule through a resolution of disapproval if both houses approve the measure and it is signed by the president. The likelihood of that occurring is virtually zero with the Democrats in control of the Senate and White House. But the resolution shines a light on the highly controversial rule.
Farm groups have been most concerned by the language “significant nexus” in the rule, which they argue could be vaguely interpreted and vastly expand EPA regulatory authority to lands not currently under Clean Water Act jurisdiction.