A group of Republican lawmakers on June 21 sent a letter to the US Environmental Protection Agency (EPA) and US Army Corps of Engineers requesting information on how the Biden Administration plans to rewrite the Waters of the US (WOTUS) definition after the US Supreme Court’s recent decision in Sackett v. EPA.
The Supreme Court on May 25 issued a 5-4 ruling limiting the EPA’s regulatory authority over wetlands under the Clean Water Act (CWA), saying the CWA extends only to “wetlands with a continuous surface connection” to water bodies that are already protected as permanent and directly connected to a traditional navigable water (GM May 26, p. 1).
The ruling countered the “significant nexus” standard that guided the EPA’s latest WOTUS definition, which was published in late December (GM Jan. 6, p. 1) and went into effect on March 20. Legal challenges prevented the new definition from being implemented in all states, however (GM April 14, p. 1).
In the June 21 letter to EPA Administrator Michael S. Regan and Michael L. Connor, Assistant Secretary of the Army for Civil Works, Sen. Shelley Moore (R-Wyo.) and Reps Sam Graves (R-Mo.) and David Rouzer (R-N.C.) asked for a “detailed update” on how the agencies plan to “adhere to the majority opinion and not slow-walk compliance with the decision.”
“The Court’s ruling reinforces property owners’ rights, protects the separation of powers by limiting your agencies’ authority to what Congress has delegated in statute, and ensures adherence to the congressional intent in writing the Clean Water Act,” the letter stated. “Additionally, the Court upholds the cooperative federalism framework of the CWA, as well as the states’ authority and responsibility to regulate non-Federal waters within their borders.”
The letter requested a briefing from the administration before June 28, stressing that the Court’s majority “articulated a clear, easily administrable definition of WOTUS” while rejecting the significant nexus standard as “illegitimate.”
“The agencies wasted valuable time and resources by prioritizing the promulgation of a rule over the first two years of the Biden Administration; that is now clearly unlawful,” the letter continues. “Notably, this administration ignored our repeated admonitions that the agencies should wait until the Supreme Court acted to proceed, and our warnings that the rule being drafted would not be ‘durable.’ Now the EPA and the Corps must work to bring application of WOTUS quickly and effectively in line with Sackett II.”
The letter further charges that, since the Supreme Court ruling, the agencies have delayed its implementation by unnecessarily freezing the “review and issuance of approved jurisdictional determinations” and delaying the permitting process for projects.
“The Biden Administration must now follow the law by implementing the Supreme Court’s decision with the same fervor it showed in its prior efforts on WOTUS,” the letter demands. “Failure to do so is indicative that these recent delays are needless at best, or intentional efforts to halt economic development at worst.”
At the time of May ruling, EPA Administrator Regan issued a statement saying the agency would “carefully review” the Supreme Court decision as it considers its next steps. He expressed “disappointment in the ruling, however, claiming that it “erodes longstanding clean water protections.”
“In order to comply with the Court’s ruling, the agencies must provide immediate direction to their regional and district offices to apply Sackett II in the evaluation of jurisdictional determinations and permits, ensuring clarity and consistent nationwide application of CWA jurisdiction to landowners and the regulated community,” the GOP letter said. “Ongoing delays and confusion will hamper project development across the country, including those authorized by the Infrastructure Investment and Jobs Act.”