Resolution to Repeal New WOTUS Rule

Which bodies of water are subject to federal regulation has been greatly contested when it comes to Waters of the United States (WOTUS). National Federation of Independent Business (NFIB) members have been fighting for certainty and clear compliance standards while the rules continue to change with each administration. The Congressional Review Act (CRA) establishes a process for a resolution of disapproval that would repeal the new WOTUS rule. NFIB recently sent two letters of support for the CRA to the House and Senate.

The resolution would repeal the Environmental Protection Agency’s (EPA) and the Army Corps of Engineers’ December 2022 WOTUS rule that expands the federal government’s regulatory authority over wetlands, farms, and private property. The Administration ignored the calls from NFIB and America’s small farmers, ranchers, developers, contractors, and other small businesses to wait for the U.S. Supreme Court decision in the Sackett v. EPA case, which is expected in the coming months.

“America’s farmers, ranchers, developers, contractors, and other small businesses have been greatly affected by the ongoing changes to WOTUS standards,” explained Kevin Kuhlman, NFIB Vice President of Federal Government Relations. “This overreaching rule increases compliance burdens and uncertainty for small businesses as they wait to hear from the Supreme Court.” 

According to NFIB’s Problems and Priorities survey, “unreasonable and burdensome government regulation” is a significant problem facing small businesses. NFIB has filed an amicus brief in Sackett v. EPA. NFIB’s brief argues the Supreme Court should reverse the lower court’s decision and clarify that EPA has exceeded its federal authority under the Clean Water Act (CWA).

Under the CWA, the WOTUS Rule determines which bodies of water fall under federal jurisdiction. Over the years, presidential administrations have applied very different standards regarding when the federal government has jurisdiction over – and can regulate – wetlands. The EPA’s new rule reinstates a broader interpretation of the CWA that would expand federal authority over private property wetlands and land across the country. Under this standard, owners would need to acquire federal permits for lands that are dry most of the year.s