News & Commentary
As of April 12, the Biden administration has been preliminarily enjoined from implementing its revised Waters of the United States administrative rule in 26 of 50 states.
The revised WOTUS rule was set to take effect on March 20, 2023, in all 50 states. The Clean Waters Act (CWA) requires that federal permits are obtained prior to discharging pollutants into, dredging, or filling “navigable waters.” Under the CWA, the term “navigable waters” is defined as “the Waters of the United States.”
The revised WOTUS rule purports to clarify the Environmental Protection Agency’s (EPA) definition of the Waters of the United States. In reality, the rule would substantially expand the EPA’s ability to regulate private properties in the United States. By broadening the definition of WOTUS, the Biden administration is unilaterally expanding the scope of its authority to regulate water and property in the United States without the approval of Congress.
On January 18, 2023, the states of Texas and Idaho and 18 trade associations sued the EPA in the United States District Court for the Southern District of Texas. The court consolidated the originally distinct cases filed by the states and the trade associations into one. The plaintiffs argue that any “sometimes-wet feature on” a property is at risk of being deemed a Water of the United States by the EPA’s “vague and unpredictable standards – making substantial business activities . . . subject to criminal and civil penalties.”
It is important to note that residential or commercial property development cannot occur near a WOTUS without going through an expensive and time-consuming permitting process overseen by the EPA and Army Corps of Engineers. Such development often requires expensive mitigation measures that may be cost-prohibitive. The expanded WOTUS definition would further infringe on the private property rights of individuals.
The Plaintiffs assert that the rule violates the Administrative Procedure Act (APA) by exceeding the power delegated by Congress to the EPA under the Clean Waters Act. Additionally, the plaintiffs assert that the WOTUS rule’s “unworkable definition” conflicts with the Clean Waters Act, the “major questions” doctrine, the “nondelegation doctrine,” and the United States Constitution by violating the 10th Amendment’s protection of federalism, the 5th Amendment’s Due Process Clause, and the Commerce Clause.
On March 19, the Southern District of Texas granted a preliminary injunction, enjoining the Biden administration from implementing the WOTUS Rule in Texas and Idaho. However, the court denied a nationwide injunction because, for the states that embrace the rule, the court was reluctant to deprive the states of their sovereign right to conform to the rule’s requirements – while the rule’s statutory and constitutional validity is being decided.
Twenty-four other states, led by West Virginia, filed a second suit against the EPA related to its revised WOTUS rule.
The states again sought a preliminary injunction related to the WOTUS Rule. On April 12, the District Court for the District of North Dakota granted the preliminary injunction, enjoining the EPA from implementing the WOTUS rule in the 24 states that are plaintiffs in the suit.
Pending litigation on the statutory and constitutional validity of the WOTUS Rule, the Biden administration is barred from implementing the rule in 26 out of the 50 states. Those 26 states are Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming.
The revised WOTUS rule has received bipartisan opposition in Congress. On March 9, the House passed a joint resolution under the Congressional Review Act to repeal the WOTUS Rule. On March 29, the Senate passed a similar resolution. The Senate voted 53-43 in favor of the resolution, with Democratic Senators Rosen, Cortez Masto, Manchin, and Tester, along with Independent Senator Sinema joining the Republicans in support of the resolution. However, on April 6, President Biden vetoed the resolution to repeal the rule. At this point, the Senate does not have the votes to override the President’s veto.
The Biden administration’s WOTUS Rule undoubtedly exceeds the EPA’s statutory authority, in violation of the Administrative Procedure Act. Under the APA, an administrative agency’s action is unlawful if it is promulgated “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” While litigation is time-consuming, and this case is far from its conclusion, the WOTUS rule will eventually be struck down nationwide.
Garrett Gillespie is an evening law student pursuing a Juris Doctor degree, and graduated Magna Cum Laude from the University of Central Florida with a Bachelor of Arts degree in political science.
The Gillespie Report is a weekly news and conservative commentary column written by Garrett Gillespie. Subscribe to receive the newest edition each week for free.
No posts
Comments
Nothing yet. Say the first thing.
Sign in to join the conversation.