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Congressional Review Act not the end of the road for WOTUS

How similar is "similar?"

By Mary Hightower
U of A System Division of Agriculture

March 31, 2023

Fast facts

  • Despite Senate, House approval, CRA may prove moot
  • Rollins: CRA has ‘interesting implications’

(340 words)

(Newsrooms: with art of Rollins,

FAYETTEVILLE, Ark. — The Congressional Review Act aimed at overturning the Environmental Protection’s latest definition of waters of the United States is a novel tactic that may spawn some “interesting implications,” said Brigit Rollins, staff attorney for the National Agricultural Law Center. 

The Congressional Review Act, or CRA, is a joint resolution of disapproval of the EPA rule containing the latest definition of waters of the U.S. The EPA rule went into effect on March 20.

On Wednesday, the Senate passed CRA. The House passed the measure on March 9.

Brigit Rollins, NALC staff attorney
WOTUS — EPA's new WOTUS rule faces multiple challenges, says National Agricultural Law Center attorney Brigit Rollins, but the Congressional Review Act reflecting disapproval, may not succeed. (U of A System Division of Agriculture image)

Defining waters of the U.S., or WOTUS, has been a decades-long struggle. The definition is critical to enforcement of the Clean Water Act. The rule has already been halted by an injunction in two states, and there are two more cases in which injunctions are being sought. 

“Given that President Biden is intending to veto the resolution, the CRA is sort of a moot point” since there doesn’t appear to be enough votes in Congress to override the veto, Rollins said.

However, the action is worthy of note as a tactic.

“To my knowledge, this is the only time that Congress has used the CRA process to try to overturn a definition of WOTUS, which does have some interesting implications,” Rollins said. “For example, if an agency regulation is overturned via the CRA, that agency is prevented from passing any regulation that is ‘substantially similar’ to the overturned rule.

Since “the CRA doesn't define ‘substantially similar,’ we must ask, ‘how similar is similar?’” she said.

“Because the 2023 WOTUS rule is fairly similar to the 1980s rule, would EPA not be able to return to that definition? Rollins asked. “How different would a WOTUS definition need to be to avoid being ‘substantially similar’ to the 2023 rule?

“Of course, since President Biden is planning to veto the rule, those are questions we'll likely never get answered,” Rollins said.

Rollins’ March 15 webinar on WOTUS is available for online review. She will offer a follow-up webinar on WOTUS on July 19.

For updates on WOTUS and other agricultural law developments, subscribe free of charge to The Feed, the NALC’s twice-monthly newsletter highlighting recent legal developments facing agriculture.

For information about the National Agricultural Law Center, visit or follow @Nataglaw on Twitter. The National Agricultural Law Center is also on Facebook and LinkedIn.

About the National Agricultural Law Center

 The National Agricultural Law Center serves as the nation’s leading source of agricultural and food law research and information. The NALC works with producers, state and federal policymakers, Congressional staffers, attorneys, land grant universities, and many others to provide objective, nonpartisan agricultural and food law research and information to the nation’s agricultural community.

The NALC is a unit of the University of Arkansas System Division of Agriculture and works in close partnership with the USDA Agricultural Research Service, National Agricultural Library.

 About the Division of Agriculture

The University of Arkansas System Division of Agriculture’s mission is to strengthen agriculture, communities, and families by connecting trusted research to the adoption of best practices. The Division of Agriculture conducts research and extension work within the nation’s historic land grant education system through the Agricultural Experiment Station and the Cooperative Extension Service.

The Division of Agriculture is one of 20 entities within the University of Arkansas System. It has offices in all 75 counties in Arkansas and faculty on five system campuses.

The University of Arkansas System Division of Agriculture is an equal opportunity/equal access/affirmative action institution. If you require a reasonable accommodation to participate or need materials in another format, please contact as soon as possible. Dial 711 for Arkansas Relay.

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Media contact: Mary Hightower