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How similar is "similar?"
By Mary HightowerU of A System Division of Agriculture
March 31, 2023
(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.
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
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
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 email@example.com as
soon as possible. Dial 711 for Arkansas Relay.
# # #
Media contact: Mary Hightowermhightower@uada.edu@AgInArk