EPA and the U.S. Army Corps of Engineers are being urged by most of the House Republican delegation — 201 of 211 members — to pause their rulemaking efforts on Waters of the U.S. (WOTUS). The agencies have embarked on a two-step plan to revisit the WOTUS situation: First to put the definition of WOTUS back to pre-2015 levels with adjustments for court decisions, and second to set a new definition. This comes as the U.S. Supreme Court is mulling a case which involved WOTUS and that is part of the basis that the Republican lawmakers, including House Majority Leader Kevin McCarthy (R-Calif.) and others in the Republican leadership, are citing as a reason for the agencies to put their plans on hold until the nation’s top court rules. “Any future rulemaking must be based on fully informed legal guidance,” the lawmakers stated. “The Agencies’ goal of developing a lasting rule can only be achieved if appropriate legal standards are met, and it is premature to develop a new rule until the Court’s Sackett opinion is issued.”
EPA has also selected 10 regional roundtables out of several proposed by groups and organizations. EPA wants to use these roundtables to gather more input from stakeholders in various sectors on what the new definition of WOTUS should be.
WOTUS has remained a source of friction and controversy since the Obama administration put forth its more-restrictive definition in 2015 that was then replaced by the Trump administration via the Navigable Waters Protection Rule. With the changes being proposed by the Biden administration, this would make the sixth change in the definition of WOTUS in the last 10 years, increasing the level of uncertainty and potential costs faced by farmers, businesses and others as they seek to comply with an ever-changing regulation.
