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
- Despite Senate, House approval, CRA may prove moot
- Rollins: CRA has ‘interesting implications’
(Newsrooms: with art of Rollins, https://flic.kr/p/2h4geR3
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.
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.
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For information about the National Agricultural Law Center, visit nationalaglawcenter.org 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.
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Media contact: Mary Hightower