Biden veto sets up court battle over water

President Biden’s veto of a congressional resolution challenging his Environmental Protection Agency’s redefining of “waters of the United States,” sets up a larger battle to play out in the courts for his administration to uphold the rule that is now being challenged in over half the country.

Efforts to define WOTUS and stretch the interpretation of the Clean Water Act, which regulates “navigable waters in the United States” have been ongoing since the act was introduced 50 years ago. The Biden Administration brought renewed vigor to the fight when on Jan. 18, the EPA published a revised definition that would expand authority to thousands of miles of streams, wetlands and other bodies that feed into navigable rivers and lakes.

That was challenged by both the Senate and the House, who both put forward congressional resolutions led by Republicans with the help of some Democrats and which was quickly vetoed by President Biden.

Industry groups have warned that the federal rule will slow transportation projects and increase its costs, and groups such as the American Road & Transportation Builders Association, have argued that roadside ditches will now be considered protected waterways, requiring burdensome regulatory permits.

In his statement on vetoing the congressional resolution in the House, President Biden said that his rules provide a roadmap to help advance infrastructure projects, economic investments and agricultural activities while protecting water quality and public health.

“The increased uncertainty caused by H.J. Res. 27 would threaten economic growth, including for agriculture, local economies, and downstream communities.  Farmers would be left wondering whether artificially irrigated areas remain excluded or not.  Construction crews would be left wondering whether their waterfilled gravel pits remain excluded or not.  The resolution would also negatively affect tens of millions of United States households that depend on healthy wetlands and streams,” President Biden said in his message to the House following the veto.

ARTBA joined a coalition of 17 groups including the likes of the American Farm Bureau Federation, Associated General Contractors of America as well as several housing and agriculture groups to file a lawsuit in the U.S. District Court for the Southern District of Texas, joined by Idaho. That compliments the fight led by North Dakota, which heads a 24-state coalition in fighting against the EPA’s rule.

In addition to Texas and Idaho, the rule is now blocked in Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire , North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia, West Virginia, and Wyoming as of April 12.

“The Court finds that the new 2023 Rule is neither understandable nor ‘intelligible,’ and its boundaries are unlimited,” the order issued by district Judge Daniel L. Hovland in North Dakota said.

Participants in the lawsuit are hopeful they’ll succeed even further once judges get down to the merits.

“We do think that this rule goes further than the Clean Water Act intended and we think once we get to litigating this on the merits, the rule will ultimately be struck down by the courts,” said Nick Goldstein, vice president of regulatory and legal issues at ARTBA.

Onlookers challenging the rule are also keeping a close eye on the Supreme Court, where Sackett vs. EPA, which will determine whether the nexus test, or the test for how the EPA determines jurisdiction, is the proper test for doing so. That ruling will also significantly impact this case.

 ”If we get a favorable decision in Sackett, then this rule may have to be rewritten because the entire test that it’s based on will have been rejected by the Supreme Court,” Goldstein said. Sackett was argued in October 2022 and a decision is expected very soon.

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