September 22, 2022
During a hearing evaluating the past 50 years of the Clean Water Act, House Transportation Committee Chairman Rep. Peter DeFazio, D-Ore., says the Biden administration is playing an active role in restoring some of the tools that made the Clean Water Act so successful. However, Republican Congressional leaders say EPA has overreached its authority and urged EPA to hold off on its waters of the U.S. rulemaking as the Supreme Court considers the recent West Virginia v. EPA case and the upcoming Sackett case.
The Environmental Protection Agency recently sent its final rule to regulate “waters of the United States” to the Office of Management and Budget. This action starts a 90-day countdown for OMB to seek comments from other potentially affected federal agencies, although some rules have been known to take longer than the 90-day limit. EPA has hinted that the rule will be published in the Federal Register by year’s end.
This rule will be the newest replacement for the Trump era Navigable Waters Protection Rule (NWPR) and for the NWPR's temporary replacement (a modified 1986 rule). It is widely expected to mirror the expansive WOTUS rule published under the Obama Administration and may reduce the gains made for agriculture under the NWPR.
Related: Biden won’t wait on Congress to address ‘climate crisis’
DeFazio explains, “New rulemakings will permanently undo the ‘Trump Dirty Water Rule’—which was quickly overturned by federal courts as ‘fundamentally flawed’—will strengthen the authority of states and Tribes in protecting their water resources and will restore the longstanding role of science in the decision-making process. These actions will restore the efficacy of the Clean Water Act, reduce pollution in our vital natural resources, and protect access to clean water for hundreds of millions of Americans.”
DeFazio adds, under the previous administration, there was an “unprecedented” rollback of over 100 environmental regulations. “Thankfully, President Biden’s EPA is taking action to undo some of the most egregious maneuvers of the former administration.”
However, top Republican committee leaders urge this administration to wait on taking those actions. One of the most serious instances where a presidential administration has sought to “usurp the authority granted to it by Congress” is in the attempts to revise the definition of WOTUS, the letter states.
“For decades, rural communities, farmers, businesses, and industries who rely on clean water have dealt with legal and regulatory uncertainty, compounded with confusing and overreaching federal regulations over what is considered a WOTUS and subject to Federal regulations and permitting,” the letter continues.
This summer’s ruling by the Supreme Court in West Virginia v. EPA suggests that there is “reason to hesitate” with regard to this claim of authority given the two criteria outlined by Chief Justice Roberts: the history and breadth of the authority asserted and the economic and political significance of that assertion.
Rep. Mariannette Miller-Meeks, R-Iowa, coined herself the anti-WOTUS girl as she’s been outspoken on the need to address the uncertainty and limit EPA’s overreach. She is hopeful in light of the West Virginia case it may give EPA a reason to pause.
“We're hoping that just as the Supreme Court saw in that case that federal agencies were using rulemaking authority to go beyond what they are legislatively allowed to do through Congress, and that it should be legislation through Congress, not through rulemaking of an agency,” Miller-Meeks states.
On October 3, 2022, Sackett v. EPA will be the first case argued in the new term at the Supreme Court. Pacific Legal says the case allows the Supreme Court to continue where West Virginia v. EPA left off — reining in the unconstitutional administrative state.
Miller-Meeks was amongst the 155 House Republicans and 46 senators who filed an amicus brief in support of the petitioners in the pending Sackett case.
“We're really hopeful that, you know, in this amicus brief that we filed that the Supreme Court will side with us and against the EPA, and they'll pull it back,” she says of the Biden water rule moving through the rulemaking process.
The Sacketts have spent 15 years locked in a legal dispute with the EPA over their right to build a home on land they own near Priest Lake, Idaho. Damien Schiff, Pacific Legal Foundation senior attorney and lead counsel for the Sacketts, explains the case challenges the jurisdiction of what EPA considered a wetland, however, Schiff says it is the “most normal, innocuous, inoffensive type of land use imaginable with the construction of a single family home, and not only is it totally unobjectionable, but it's an activity that was going on within an existing residential subdivision.”
“It's really hard to imagine any other case where you would have even less of a reason to expect that your normal land use activity would trigger of significant federal authority or federal control,” he adds.
Schiff explains that because the statute doesn't refer to wetlands as under federal jurisdiction, but instead refers only to waters, it implies that if you're going to regulate wetlands, they have to be so closely connected to waters that basically they function as a single unit. “And it's that significant interrelationship that we think is a necessary aspect of EPA’s jurisdiction, but which EPA and the lower courts have believed to be unnecessary,” says Schiff.
In March, over 200 Members of the House of Representatives wrote to the EPA and the Army Corps of Engineers urging a halt on all current rulemaking actions surrounding the WOTUS definition as the Supreme Court takes up this landmark case. The Republican committee leaders reiterated that request, and now further stress that the agencies must consider the decision of West Virginia v. EPA prior to issuing a rulemaking that would clearly surpass the agencies’ congressional authority to define WOTUS.
And even after the Supreme Court makes a decision, the fight may not be over.
Miller-Meeks adds, “The other thing that we've seen with the Biden administration is that even when the courts overrule them, that they continue down the same pathway, and they don't pull back. So, we're going to continue to fight it.”
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