President Joe Biden’s “Waters of the United States” (WOTUS) rule vastly expands what is protected by the Clean Water Act of 1972.
The revised rule was posted to the Federal Register January 18 and will become effective March 20 unless a court puts it on hold.
The Clean Water Act establishes boundaries and permit requirements for discharging pollutants into protected waters, which had been navigable waters, territorial seas and interstate waters. The new rule wants to gain authority to also regulate “impoundments” of WOTUS, tributaries to traditional navigable waters and wetlands adjacent to any of the described bodies of water to become subject to the revised WOTUS.
Former President Donald Trump scaled back the reach of the Environmental Protection Agency with his administration’s Navigable Waters Protection Rule of 2020.
Like many other Trump initiatives, President Biden was quick to undo his predecessors regulatory relief, instructing federal agencies to work on expanding their reach over water.
Texas Attorney General Ken Paxton January filed a lawsuit in a Texas federal court claiming the Biden administration was trying to usurp the state’s power.
“By this challenge, the plaintiffs assert that by amending the definition of “Waters of the United States,” as provided in the Final Rule, the Federal Agencies unconstitutionally and impermissibly expand their own authority beyond Congress’s delegation in the CWA—intruding into state sovereignty and the liberties of the states and their citizens,” Paxton argued in his complaint. “The Final Rule also lacks clarity, leaving those wishing to identify the ambit of federal power over dry land or minor water features at the mercy of an expensive, vague, and arbitrary analysis, lest they face a staggering criminal or civil penalty.”
The attorney general Friday asked the court for a preliminary injunction to delay the new rule from taking effect before his case is deliberated.
“The environmental extremists who wrote this unlawful rule have no interest in respecting our sovereignty or our natural resources,” Paxton said in a statement. “For this Administration, this isn’t about environmental protection—it’s about federal control over states like Texas, and we aren’t going to allow it.
“This rule is unlikely to survive our efforts to stop it permanently, and it is important that the court prevents the change in definition from going into effect until our case has been decided.”
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