Republican Governors Call For WOTUS Rule Delay

The Republican Governors Association, representing the governors of 25 states, including most farm states, sent a letter to the White House January 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 a 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 and divided decision 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 a “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 Antonin Scalia in the plurality opinion in Rapanos.

The governors’ letter said, “The WOTUS definition has been under scrutiny for nearly 20 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 [in Sackett]. … 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.”

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A ruling in the Sackett case is expected by 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.