EPA Administrator Michael S. Regan says he wants a “durable definition” for the “Waters of the United States” known as WOTUS. In November 2021, Regan floated a rulemaking process to do just that, and the public comment period ended on Feb. 7.
A couple of weeks earlier, however, the Supreme Court of the United States, known as SCOTUS, threw a wrench into Regan’s plans by agreeing to hear the case known as Sackett v. EPA. The case goes to the heart of WOTUS and grew out of EPA’s 2004 ruling that the presence of “wetlands” on a building lot required a federal Clean Water Act permit.
The successful Writ of Mandamus for Sackett means the Supreme Court will hear the case during its next term, beginning in October 2022, with the court’s opinion to be issued by June 2023.
When Regan kicked off his process, he said, “the only constant with WOTUS has been change,” Those words are coming back on EPA with suggestions that it let the Supreme Court go first by suspending its WOTUS rulemaking process.
The National Association of State Departments of Agriculture (NASDA) and most U.S. Senate Republicans want EPA to suspend its WOTUS rulemaking action until SCOTUS hands down its decision in Sackett.
“As you know, this case may have major implications for Clean Water Act scope and enforcement,” said a Feb. 3 GOP letter. Signed by all 50 Senate Republicans, the letter to Regan and the Army’s Michael L. Conner would be “irresponsible” for the two agencies with Clean Water Act authority to act before the court.
NASDA’s CEO Ted McKinney said the proposed WOTUS rule coming out of EPA and Army Civil Works “will return us to the ambiguity of past regulation as well as the federal overreach that ignored the role and expertise of state partners.”
NASDA is the nonpartisan, nonprofit association representing elected and appointed state agricultural commissioners and state directors of agriculture departments.
Determinations over “navigable waters” have been at the core of the disputes since Congress adopted the Clean Water Act in 1972.
The Sackett property in northern Idaho did not have any surface water connection to any stream, creek, lake, or other water body. The Ninth Circuit Court of Appeals upheld EPA’s requirement that Sackett obtains a federal Clean Water permit.
The GOP letter says the “limited exclusions and lack of clarity” put farmers and ranchers at severe financial risk for “ditches, prairie potholes, and stock ponds.”
In commenting on the WOTUS rule-making “as currently proposed,” the GOP Senators say it “exceeds the regulatory authority” that the two agencies are granted under the Clean Water Act.
“The proposed rule seeks to federalize waters in a land grab that arguably surpasses its 2015 predecessor, improperly encompassing water features traditionally within the sole purview of states while reverting from the straightforward comparative application of the 2020 Navigable Waters Protection Rule and interjecting new uncertainties for nearly every private stakeholder,” says the troubled GOP senators.
NASDA’s McKinney says EPA rulemaking should respect the concept o “cooperative federalism.” with limitations on federal limitation.
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