Cortez Masto breaks from Biden administration on water rule

This story was updated at 2:36 p.m. Wednesday. 

In a tug of war over federal water policy — and who gets to define protected waters — U.S. Sen. Catherine Cortez Masto, D-Nev., broke with the White House and joined Republicans in the Senate to try and reverse the Biden administration’s Waters of the United States rule, known as WOTUS.  

“Nevada’s unique water needs are unlike any other state, and this administration’s rule forces our local governments, farmers, ranchers and businesses to jump through unnecessary red tape,” Cortez Masto said in a prepared statement sent to the Appeal.

On Wednesday, Cortez Masto voted with Senate Republicans 53-43 to pass a Congressional Review Act resolution nullifying the Biden administration’s new WOTUS rule, which took effect March 20. Joining Cortez Masto was Sen. Jacky Rosen, D-Nev., and Sen. Jon Tester, D-Mont.

The U.S. House of Representatives passed the resolution of disapproval on March 9 in a 227-198 vote, with 9 Democrats joining Republicans. In a March 6 statement, the White House said President Joe Biden would veto any such resolution.

On Tuesday, in a phone interview with the Appeal, Cortez Masto explained her decision.

“A number of things I just have concerns about with respect to this new rule,” said Cortez Masto.

She worried the rule is too restrictive and pointed out the State of Nevada has raised concerns to the administration, specifically that the rule doesn’t exclude groundwater. It could affect Nevada ranchers and farmers, she said.

“How the federal government defines water will have an impact on their day-to-day activities,” she said.

Cortez Masto emphasized Nevada is an arid state with its own needs and circumstances, “unlike any other state.”

In the Dec. 30, 2022, announcement of the new rule, the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers described definitions of U.S. waters.

“Thus, ‘waters of the United States’ is a threshold term establishing the geographic scope of federal jurisdiction under the Clean Water Act,” reads a press release from the EPA. “The term ‘waters of the United States’ is not defined by the Act but has been defined by the agencies in regulations since the 1970s and jointly implemented in the agencies’ respective programmatic activities.”

In the same release, EPA Administrator Michael Regan said, “Following extensive stakeholder engagement, and building on what we’ve learned from previous rules, EPA is working to deliver a durable definition of WOTUS that safeguards our nation’s waters, strengthens economic opportunity and protects people’s health while providing greater certainty for farmers, ranchers and landowners.”

According to Cortez Masto’s office, when the senator was Nevada’s Attorney General, she opposed the Obama administration’s 2015 WOTUS rule to expand the definition of waterways “protected under the Clean Water Act.”

“This move to expand federal jurisdiction over small streams and wetlands met opposition from then-Attorney General Cortez Masto and Nevada farmers, ranchers and local government officials,” reads the statement from the senator’s office. “Nevada has unique water needs and strong state agencies and laws capable of managing the complexities of Nevada’s water resources.”

In 2020, Cortez Masto criticized the Trump administration for “substantially rolling back even pre-2015 WOTUS protections,” according to her office.

The Trump administration replaced the Obama administration’s rule with the Navigable Waters Protection Rule in 2020.

“The new #WOTUS rule is bad news, plain and simple,” reads a Jan. 24, 2020 tweet from Cortez Masto aimed at the Trump administration.

According to the senator’s office, a middle, more regional approach is appropriate. A spokesperson for the office said returning to pre-2015 regulations and protections is the goal.