H.J.Res.27, providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by the Department of the Army, Corps of Engineers, Department of Defense and the Environmental Protection Agency relating to "Revised Definition of 'Waters of the United States'".

Rep. Sam Graves (R-MO) Press Release

Committee on Transportation and Infrastructure Chairman Sam Graves (R-MO) and Water Resources and Environment Subcommittee Chairman David Rouzer (R-NC) introduced a joint resolution of disapproval under the Congressional Review Act (CRA) on the Biden Administration’s flawed and burdensome “Waters of the United States” (WOTUS) rule. [They argue] this rule will lead to sweeping changes to the federal government’s authority to regulate what is considered a navigable water, with enormous impacts on small businesses, manufacturers, farmers, home and infrastructure builders, local communities, water districts, and private property owners.

“As American families and businesses continue suffering under the economic crises caused by the disastrous Biden policies of the last two years, this Administration has inexplicably decided to move the country back toward the costly and burdensome WOTUS regulations of the past,” said Graves. “In an unnecessary drain on federal resources, the Administration clumsily put forward its rule before the Supreme Court has issued a ruling in the Sackett case, which will affect and alter what the Administration has put forward. Congress has the authority and responsibility to review onerous rules like this one handed down from the Executive Branch, and I hope our colleagues on both sides of the aisle will join in this effort to preserve regulatory clarity and prevent overzealous, unnecessary, and broadly defined federal power.”

“The Biden Administration’s WOTUS rule is both poor policy and badly timed,” said Rouzer. “It will once again place overly burdensome regulations on farm families, small businesses, infrastructure projects, and entire communities – further harming our already struggling economy. Rushing to issue a new rule despite the Supreme Court’s forthcoming decision is not wise. It will only create additional confusion and uncertainty. This new EPA rule needs to be rescinded so that Americans across the country are protected from subjective regulatory overreach. Utilization of the Congressional Review Act is the best and most appropriate way for the House to make its collective voice heard and push back. I’m proud to lead my colleagues in Congress as we work to terminate onerous rules like this one.”

The House Joint Resolution introduced would terminate the Biden WOTUS rulemaking utilizing the CRA, which provides a mechanism for Congress to overturn certain final agency actions.

On January 18, 2023, the Environmental Protection Administration and U.S. Army Corps of Engineers published the Administration’s long-expected WOTUS rule, which:

Voids the 2020 Navigable Waters Protection Rule, a rule that had provided much-needed clarity and certainty for the regulated community throughout the Nation; Reverts back to the Obama Administration’s era of greater uncertainty and expansive federal jurisdiction to regulate navigable waters under the Clean Water Act, including wetlands, ephemeral streams, and ditches; Moves the federal government towards a regulatory regime under which agency bureaucrats decide what is regulated, rather than working with those who will be affected, at a time when the Supreme Court has yet to issue an opinion on a pending WOTUS case (Sackett) that will directly impact the rule. In Support of the EPA WOTUS Rule:

"The Environmental Protection Agency (EPA) and the Department of the Army (“the agencies”) are finalizing a rule defining the scope of waters protected under the Clean Water Act. In developing this rule, the agencies considered the text of the relevant provisions of the Clean Water Act and the statute as a whole, the scientific record, relevant Supreme Court case law, and the agencies' experience and technical expertise after more than 45 years of implementing the longstanding pre-2015 regulations defining “waters of the United States.”

This final rule advances the objective of the Clean Water Act and ensures critical protections for the nation's vital water resources, which support public health, environmental protection, agricultural activity, and economic growth across the United States."

DO YOU THINK CONGRESS SHOULD PASS H.J.RES.27, TO DISAPPROVE OF THE WATERS OF THE UNITED STATES RULE? About Waters of the United States What are "Waters of the United States"? The 1972 amendments to the Clean Water Act established federal jurisdiction over “navigable waters,” defined in the Act as the “waters of the United States” (CWA Section 502(7)). Many Clean Water Act programs apply only to “waters of the United States.” The Clean Water Act provides authority for EPA and the U.S. Department of the Army (Army) to define “waters of the United States” in regulations.

History of "Waters of the United States" “Waters of the United States” is a threshold term in the Clean Water Act and establishes the geographic scope of federal jurisdiction under the Act. Clean Water Act programs, including Water Quality Standards, TMDLs, and sections 311, 402, and 404 address “navigable waters,” defined in the statute as “the waters of the United States, including the territorial seas.”

The Clean Water Act does not define “waters of the United States”; rather, it provides authority for EPA and the U.S. Department of the Army to define “waters of the United States” in regulations.

Since the 1970s, EPA and the Department of the Army have defined “waters of the United States” by regulation. In the mid-1980s, both agencies promulgated a definition of “waters of the United States.”

Three Supreme Court decisions have addressed the definition of “waters of the United States.” In 1985, in United States v. Riverside Bayview Homes, Inc., the U.S. Supreme Court deferred to the Corps’ assertion of jurisdiction over wetlands adjacent to a traditional navigable water, stating that adjacent wetlands may be regulated as "waters of the United States" because they are ‘‘inseparably bound up’’ with navigable waters and ‘‘in the majority of cases’’ have ‘‘significant effects on water quality and the aquatic ecosystem’’ in those waters.

In Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) in 2001, a 5-4 Court held that the use of "nonnavigable, isolated, intrastate waters" by migratory birds was not by itself a sufficient basis for the exercise of Federal authority under the Clean Water Act. SWANCC, 531 U.S. at 172. The Court noted that in Riverside Bayview, it had "found that Congress' concern for the protection of water quality and aquatic ecosystems indicated its intent to regulate wetlands 'inseparably bound up with the "waters" of the United States'" and that "[i]t was the significant nexus between the wetlands and 'navigable waters' that informed [the Court's] reading of the Clean Water Act" in that case. Id. at 167. In 2001 and again in 2003, the agencies developed guidance to address the definition of “waters of the United States” under the Clean Water Act following the SWANCC decision.

The Court most recently interpreted the term ‘‘waters of the United States’’ in Rapanos v. United States in 2006. A four-Justice plurality stated that ‘‘waters of the United States’’ ‘‘include[ ] only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams[,] . . . oceans, rivers, [and] lakes,’” and ‘‘wetlands with a continuous surface connection’’ to a ‘‘relatively permanent body of water connected to traditional interstate navigable waters.’’ In a concurring opinion, Justice Kennedy took a different approach, concluding that ‘‘to constitute ‘navigable waters’ under the Act, a water or wetland must possess a ‘significant nexus’ to waters that are or were navigable in fact or that could reasonably be so made.’’ He stated that adjacent wetlands possess the requisite significant nexus if the wetlands ‘‘either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’’’ The four dissenting Justices, who would have affirmed the court of appeals' application of the agencies' existing regulation, concluded that the term "waters of the United States" encompasses all tributaries and wetlands that satisfy either the plurality's standard or Justice Kennedy's. Following Rapanos, in 2007 and again in 2008, the agencies developed additional guidance for implementing the "waters of the United States" definition.

The agencies amended their regulations defining “waters of the United States” in 2015 in the Clean Water Rule: Definition of "Waters of the United States."

The 2015 Clean Water Rule was repealed by the 2019 Rule, which reinstated the 1980s regulations, implemented consistent with the U.S. Supreme Court cases and applicable guidance.

The agencies replaced the 2019 Rule with the Navigable Waters Protection Rule (NWPR) in 2020. The agencies are in receipt of the U.S. District Court for the District of Arizona's August 30, 2021 order vacating and remanding the Navigable Waters Protection Rule in the case of Pascua Yaqui Tribe v. U.S. Environmental Protection Agency. In light of this order, the agencies have halted implementation of the NWPR nationwide and are interpreting "waters of the United States" consistent with the pre-2015 regulatory regime.

For additional information, see the History of the Effects of Litigation Over Recent Definitions of "Waters of the United States" (pdf) (66.74 KB)

On December 30, 2022, the agencies announced the final "Revised Definition of 'Waters of the United States'" rule. On January 18, 2023, the rule was published in the Federal Register; the rule will be effective on March 20, 2023. More information about the final rule is available here.

Current Implementation of “Waters of the United States” The Environmental Protection Agency and U.S. Army Corps of Engineers ("the agencies") are in receipt of the U.S. District Court for the District of Arizona’s August 30, 2021, order vacating and remanding the Navigable Waters Protection Rule (NWPR) in the case of Pascua Yaqui Tribe v. U.S. Environmental Protection Agency. In light of this order, the agencies have halted implementation of the NWPR nationwide and are interpreting “waters of the United States” consistent with the pre-2015 regulatory regime.

On December 30, 2022, the agencies announced the final "Revised Definition of 'Waters of the United States'" rule. On January 18, 2023, the rule was published in the Federal Register

; the rule will be effective on March 20, 2023. The agencies developed this rule with consideration of the relevant provisions of the Clean Water Act and the statute as a whole, relevant Supreme Court case law, and the agencies’ technical expertise after more than 45 years of implementing the longstanding pre-2015 “waters of the United States” framework. This rule also considers the best available science and extensive public comment to establish a definition of “waters of the United States” that supports public health, environmental protection, agricultural activity, and economic growth. More information about the final rule is available here.

If a state, tribe, or an entity has specific questions about a pending jurisdictional determination or permit, please contact a local U.S. Army Corps of Engineers District office or EPA.