A group of Republican lawmakers on Sept. 20 sent a letter to the US Environmental Protection Agency (EPA) and the US Army Corps of Engineers urging the federal agencies to delay rulemaking on defining Waters of the United States (WOTUS) until the US Supreme Court issues a ruling in an upcoming Clean Water Act (CWA) case.
The Supreme Court is hearing oral arguments on Oct. 4 in Michael Sackett v. EPA, a pivotal case that involves an Idaho couple that for 15 years has been prevented from building a home on their 0.63-acre property in Priest Lake, Idaho, because EPA claims part of the property contains wetlands and is therefore subject to regulation under the CWA.
In their letter to EPA Administrator Michael S. Regan and Assistant Secretary of the Army for Civil Works Michael Connor, 15 GOP Ranking Members on various House committees and subcommittees warned the two federal agencies of their regulatory limits, citing a recent Supreme Court decision in West Virginia v. EPA.
The GOP lawmakers said this decision suggests a “reason to hesitate” with any attempt to advance a new WOTUS definition due to “the history and breadth of the authority asserted and the economic and political significant of that assertion.” The letter also demands that EPA and the Corps, by no later than Oct. 4, provide a list to the lawmakers of all pending and expected rulemakings concerning WOTUS and the specific congressional authority for each rulemaking.
“As Ranking Members of several House Committees, including those overseeing your agencies, we intend to exercise our robust investigative and legislative authority to not only forcefully reassert our Article I responsibilities, but to ensure the Biden administration does not continue to exceed Congressional authorizations,” the letter states.
The Supreme Court ruling in the Sackett case will likely outline more clearly the scope of federal regulatory authority under the CWA, and answer questions that have been lingering since a 2006 decision in Rapanos v. US.
In that landmark case, the court failed to reach a majority, instead issuing a plurality opinion. Four judges, led by the late Justice Antonin Scalia, concluded that navigable waters and wetlands with a “continuous surface connection” should be subject to CWA regulation. Justice Anthony Kennedy, however, wrote a separate concurring opinion indicating that wetlands should be regulated if they have a “significant nexus” to navigable waters and would potentially affect them, even if they are not directly connected.
It was Kennedy’s “significant nexus” standard that drove the Obama administration’s 2015 WOTUS redefinition (GM June 1, 2015), which was almost immediately challenged by 31 states and numerous stakeholders in multiple lawsuits, prompting the Sixth Circuit in October 2015 to issue a nationwide stay (GMOct. 19, 2015). That stay was lifted in January 2017, when the Supreme Court determined that review of the rule falls within the jurisdiction of the district courts.
The Trump administration then tried to delay the 2015 rule’s compliance deadline while it worked on a new version (GMJune 30, 2018) that hued more closely to Scalia’s WOTUS definition, but those delays were challenged in court (GMAug. 24, 2018). Subsequent decisions by a number of US district courts left a patchwork of enforcement, with the 2015 rule enjoined in 28 states and in effect for the remaining 22 states.
The Trump administration then announced in September 2019 that it was repealing the 2015 rule (GMSept. 13, 2019) entirely and replacing it with the Navigable Waters Protection Rule (NWPR), which drastically scaled back the types of waters falling under CWA jurisdiction. While heavily criticized by environmental groups, the NWPR was strongly supported by both The Fertilizer Institute (TFI) and the Agricultural Retailers Association (ARA) upon its publication in early 2020 (GMJan. 24, 2020).
Under the Biden administration, however, EPA and the Corps announced in June 2021 (GMJune 11, 2021) that they intended to draft yet another WOTUS definition that builds upon the pre-2015 rule, the Obama-era rule, and the Trump-era NWPR.
To that end, both agencies announced in January 2022 that they had halted implementation nationwide of the NWPR (GM Jan. 28, p. 1), and would rely in the interim on WOTUS standards in place prior to the 2015 framework developed under the Obama administration. EPA Agriculture Advisor Rod Snyder said in April that the agency was working toward proposing a new WOTUS definition later this year.