Republican-led states sue EPA over WOTUS rule

Rainbow River

A group of two dozen Republican-controlled states is suing the U.S Environmental Protection Agency (EPA) over the Biden administration’s Waters of the U.S. (WOTUS) rule that the group is calling an overreach that could end up harming ranchers, farmers and homeowners.

On Dec. 30, EPA and the U.S. Department of the Army announced a final rule establishing a durable definition of WOTUS to reduce uncertainty from changing regulatory definitions, protect public health and support economic opportunity. The final rule restores protections that were in place prior to 2015 under the Clean Water Act that the agencies say bring the nation closer to achieving the goal that American waters be fishable, swimmable and protective of public health. The agencies added the action will strengthen fundamental protections for waters that are sources of drinking water while supporting agriculture, local economies and downstream communities.

But according to a report in The Hill, Republican attorneys general are arguing that the rule issues protections too liberally and that it “would harm jobs and economic growth by taking jurisdiction from states and asserting federal authority over nearly any body of water, including roadside ditches, short-lived streams and many other areas where water may flow only once every 100 years,” said West Virginia Attorney General Patrick Morrisey (R).

In January, Texas Attorney General Ken Paxton (R) filed a lawsuit against the Biden Administration’s rule defining WOTUS. Paxton’s office said the rule “seeks to subject land with isolated wetlands, ephemeral streams, and off-channel reservoirs to an expensive and burdensome federal permitting process. It would also disrupt [Texas] development and management of its own energy, agriculture and transportation infrastructure.” In 2019, Paxton won a victory after a U.S. District Court ruled that the Obama-era WOTUS rule was unlawful.  

Earlier in February, Committee on Transportation and Infrastructure Chairman Sam Graves (R-MO), Water Resources and Environment Subcommittee Chairman David Rouzer (R-N.C.), and more than 150 Members of Congress sponsored a joint resolution of disapproval under the Congressional Review Act (CRA) on what they called the Biden Administration’s “flawed and burdensome” Waters of the United States WOTUS rule. 

An identical measure was also introduced in the Senate by 49 senators, led by Environment and Public Works Ranking Member Shelley Moore Capito (R-WV).  Numerous industry leaders and stakeholders have issued statements of support for the effort to overturn this rule, which will lead to sweeping changes to the federal government’s authority to regulate what is considered a navigable water, with enormous impacts on small businesses, manufacturers, farmers, home and infrastructure builders, local communities, water districts, and private property owners.

More information can be found here regarding some of the positions of industry associations supporting underground infrastructure constriction.

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