The Republican Governors Association, representing the governors of 25 states, including most farm states, sent a letter to the White House Jan. 30 urging the Biden administration to delay its application of the new definition of “waters of the United States” under the Clean Water Act until the Supreme Court issues a ruling in a closely watched case, Sackett vs EPA, that could supersede the new rule.
The WOTUS definition has been bitterly contested since a divided Supreme Court issued a 4-4-1 split decision in the case, Rapanos v. United States (2006) in which Justice Anthony Kennedy wrote that regulated wetlands must have a “significant nexus” to clearly regulated navigable waterways. The ambiguous language left an opening for the Environmental Protection Agency to claim to expand its jurisdiction over wetlands and also periodic water features.
The definition of where the “significant nexus” begins or ends has led to multiple lawsuits and regulatory battles as successive administrations appeal either to Kennedy’s definition of a regulated wetland, or to a more limited one written by Justice Anthony Scalia in the plurality opinion in Rapanos.
The governors’ letter said, “The WOTUS definition has been under scrutiny for nearly twenty years, and your administration’s rule only further complicates the efforts to create certainty under the CWA for rural communities. The problem is exacerbated by the pending Supreme Court ruling. … The rule is problematic in and of itself, but its timing is particularly troubling given record inflation and gas prices that threaten the livelihoods of so many communities. Those who rely on farming and small business as a backbone of their local economies are particularly vulnerable. Another burdensome and overbroad regulation from the federal government could not come at a worse time for America.”
A ruling in Sackett is expected this June. “To change the rule multiple times in six months is an inefficient and wasteful use of state and federal resources and will impose an unnecessary strain on farmers, builders, and every other impacted sector of the American economy,” the governors said.
David Murray can be reached at [email protected].
