On March 9, the U.S. House of Representatives passed H.J. Res 27, a joint resolution of disapproval under the Congressional Review Act (CRA) of the Biden administration’s waters of the U.S. (WOTUS) rule, by a vote of 227-198. The Senate is expected to vote on the resolution this week. If enacted, the measure would prevent the WOTUS rule from going into effect. However, President Biden has said he would veto the resolution if passed by the Senate.

The final WOTUS rule, as published by the U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers in the Federal Register on January 18, aims to walk the line between the Obama administration’s expansive 2015 Clean Water Rule and the Trump administration’s more narrow 2020 Navigable Waters Protection Rule (NWPR) by codifying the WOTUS regulations in place prior to 2015 while accounting for subsequent Supreme Court decisions. It is currently set to take effect March 20.

The definition of WOTUS directly impacts county governments as owners and operators of local infrastructure. Counties own and operate public safety water conveyances, municipal separate storm sewer systems (MS4), green infrastructure construction and maintenance projects, water reuse infrastructure and emergency management systems. Depending on whether a certain water meets the definition of WOTUS counties may need to apply for a federal permit to maintain or build new infrastructure. Counties have long advocated for clarity and consistency with regard to WOTUS in order to reduce delays to critical infrastructure projects. 

Separately from the CRA, the U.S. Supreme Court is expected to issue a decision in Sackett v. EPA in the coming months. The case focuses on WOTUS and the significant nexus test, on which the final rule heavily relies, specifically. Depending on the outcome of the case, the EPA may need to rewrite their final WOTUS rule.

As discussion over the Biden administration’s WOTUS rule moves forward, NACo will continue to advocate for county priorities and make clear the county role in environmental stewardship.

To view NACo’ statement on the CRA, click here. To view further NACo resources on WOTUS, click here.