AGC-Backed WOTUS Rule Repeal Advances

The House Transportation & Infrastructure Committee advances AGC-supported legislation to repeal a new Waters of the U.S. (WOTUS) rule that would expand federal permitting jurisdiction over wetlands and more construction projects.

On February 28, the House Transportation and Infrastructure Committee approved AGC-backed legislation (H.J. Res. 27) that would repeal the U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers’ new Waters of the U.S. (WOTUS) rule. The legislative action complements AGC’s ongoing litigation to reverse the rule.  

The administration released its new WOTUS rule despite the fact the U.S. Supreme Court is currently weighing the scope of the Clear Water Act as part of the Sackett v. EPA case. A ruling in that case could render elements of the new rule irrelevant, adding further regulatory confusion for a large section of the economy. AGC urged the Biden administration to wait for the Supreme Court to issue a ruling on the Sackett case before proceeding.

The bill is more likely than not to be passed in the coming weeks by the House. In the Senate, because this legislation falls under the Congressional Review Act, only 51 votes—not 60—are needed to pass it. The vote in the Senate is expected to be very close. If the legislation passes both the House and Senate, President Biden is likely to veto it and there will not be enough votes in Congress to override the veto.

The significance, however, of such legislation passing both House and Senate would be that it would show the courts that Congress holds that the EPA/Corps exceeded their authority under the Clean Water Act in issuing this new rule. When the Senate voted in favor of repealing the Occupational Safety and Health Administration’s (OSHA) COVID-19 vaccination or testing emergency temporary standard (ETS), the U.S. Supreme Court cited that vote as evidence that Congress found OSHA exceeded its statutory authority in issuing the ETS. The Court, in that decision, struck down the ETS.

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