WOTUS

The Biden administration made only minimal changes to its “waters of the United States” regulation to comply with the Supreme Court’s new and stricter definition of wetlands, and that will perpetuate litigation over the Clean Water Act, said West Virginia Sen. Shelley Moore Capito on Wednesday.

The Biden administration intends to update its “waters of the United States” regulation, which determines the upstream reach of anti-pollution laws, by Sept. 1, said the EPA on Wednesday. The revised WOTUS rule will reflect the recent Supreme Court decision that reduces federal protection of wetlands, it said.

Mark Squillace, a professor of Natural Resources Law at the University of Colorado Law School, spoke with FERN's Ag Insider about how a recent Supreme Court decision will affect the nation's wetlands. This interview has been edited for length and clarity. (No paywall)

In a decision that will narrow federal protection of wetlands, the Supreme Court ruled on Thursday that the 1972 clean water law applies only to marshy areas with “a continuous surface connection” to streams, oceans, rivers, or lakes. “Today’s ruling is a profound win for property rights and the constitutional separation of powers,” said the Pacific Legal Foundation, which argued the case for a couple blocked from building a home in northern Idaho. (No paywall)

The Biden administration is turning a cold shoulder to biofuels and rural America by encouraging the use of electric vehicles, said farm-state Republicans during a complaint-filled House hearing with EPA administrator Michael Regan on Wednesday. Nebraska Rep. Don Bacon pointed to the so-called WOTUS rule on wetlands protections and declared, “Any goodwill the administration has built with farmers and ranchers is gone.”

A Republican-led attempt to overrule President Biden on clean water regulation failed in the House on Tuesday on a 227-196 roll call that fell well short of the two-thirds majority needed for passage. As a result, the administration's "waters of the United States" rule remains on the books, although under challenge in federal court.

Presidents almost always prevail when they veto legislation; there have been only 20 overrides in the 45 years since Gerald Ford left office. So Republican leaders in Congress face an uphill struggle against the Biden administration's "waters of the United States" (WOTUS) regulation. Nonetheless, the House could vote as early as Tuesday in a rematch with President Biden.

Less than four months ago, the Biden administration unveiled “a durable definition” of the upstream reach of clean water laws across the country — a so-called waters of the United States (WOTUS) regulation. With a ruling on Wednesday, federal judges have enjoined implementation of the rule in 26 of the 50 states while they hear lawsuits that would void the regulation.

In a long-shot tactic, Republicans in the Senate and House pressed on Thursday for a vote to overturn the Biden administration’s Waters of the United States rule, which spells out the upstream reach of water pollution laws. It was the third WOTUS rule to be issued in less than a decade. The Supreme Court is expected to rule in coming weeks on an Idaho case that would greatly limit federal protection of wetlands.

Seventeen farm, construction, and mining groups filed suit in federal court to overturn the Biden administration’s definition of the upstream reach of water pollution laws. They argued that the new Waters of the United States (WOTUS) rule was “so opaque, uncertain, and all-encompassing” that no one could confidently know its limits.

Stepping ahead of a pending Supreme Court ruling, the Biden administration spelled out through a new regulation the upstream reach of water pollution laws, saying it would assure safe drinking water for Americans "while supporting agriculture, local economies and downstream communities." Farm and home-builder groups, who helped stall an Obama-era definition of the "waters of the United States" (WOTUS), said the Biden WOTUS rule also was a regulatory nightmare built on murky interpretations of the law.

The Supreme Court opened the door to a possible revision of wetlands regulations by agreeing to decide whether Michael and Chantell Sackett can build a house in the Idaho panhandle. Justices will hear the case even though the Biden administration is writing a new definition of the upstream reach of the Clean Water Act.

Last week, water experts marked the 50th anniversary of the Clean Water Act with a dire warning: After evaluating over 700,000 miles of rivers and streams across the country, they concluded that half of those waters are too polluted to fish or swim in—and agriculture is often to blame.(No paywall)