House and Senate Republican committee leaders this week requested a detailed update from the heads of the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers about how the agencies plan to immediately implement the Supreme Court’s decision in the Sackett v. EPA case in which the Court ruled that the Biden Administration’s proposed definition of “waters of the United States” (WOTUS) was illegal.
In a letter, Transportation and Infrastructure Committee Chairman Sam Graves (R-MO), Senate Environment and Public Works Committee Ranking Member Shelley Moore Capito (R-WV), Water Resources and Environment Subcommittee Chairman David Rouzer (R-NC), and Senate Fisheries, Wildlife, and Water Subcommittee Ranking Member Cynthia Lummis (R-WY) requested a briefing and detailed implementation information from EPA Administrator Michael S. Regan and Assistant Secretary of the Army for Civil Works Michael L. Connor.
In Sackett II, the Court rightly recognized that the significant nexus test, which underpinned the Biden Administration’s WOTUS rule, is an improper reading of the Clean Water Act (CWA). In their letter, the lawmakers stated, “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 (CWA). 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. All nine Supreme Court justices agreed that the Biden Administration’s definition of ‘waters of the United States’ (WOTUS) based on ‘significant nexus’ is illegitimate, and a majority of the Court articulated a clear, easily administrable definition of WOTUS.”
The Members specifically expressed concerns that the Biden Administration is taking steps to delay the ruling’s implementation: “In implementing the Court’s decision, the Agencies must adhere to the majority opinion and not slow-walk compliance with the decision. 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. 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 requested a briefing from the Administration before June 28, 2023.
