GOP Governors Call on Biden Admin to Delay Changing the Definition of US Waters

A view of the U.S. Environmental Protection Agency headquarters in Washington on Mar. 16, 2017. Justin Sullivan/Getty Images

Republican governors called on President Joe Biden to delay the implementation of a new federal water rule pending a Supreme Court decision in a case related to the Clean Water Act (CWA) expected this summer.

The Republican Governors Association (RGA) sent the letter (pdf) to Biden administration officials to delay the implementation of the revised Waters of the United States (WOTUS) rule, which the RGA said would “create new bureaucratic hurdles at the state level only for the court’s decision to potentially render them moot.”

“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 letter stated. “The problem is exacerbated by the pending Supreme Court ruling. The final WOTUS rule released during the holidays is concerning in terms of timing, substance, and process.”

The RGA says the rule is “problematic” in itself, but the timing is “particularly troubling given record inflation and gas prices that threaten the livelihoods of so many communities.”

The governors also criticized the lack of clarity by changing the rule “multiple times in six months” as inefficient, wasteful, and causing unnecessary strain on sectors of the economy.

“The substance of the rule hinders State governments as we seek to give clarity and consistency to businesses, farms, and individuals regarding the regulatory framework for water,” the letter continued. “The broad definitions used in the 514-page document only add to the confusing and complicated history of WOTUS.”

Defining WOTUS

The pending Supreme Court decision related to the CWA would determine whether wetlands are considered WOTUS under the CWA.

The case, Sackett v. Environmental Protection Agency (pdf), is a long-running dispute over the Environmental Protection Agency’s (EPA) jurisdiction using a standard from a prior Supreme Court ruling. A 2006 Supreme Court decision held that the CWA does not regulate all wetlands, but lacked detail as to why, according to the petition.

The challenge was brought by two Idaho homeowners, Michael and Chantell Sackett, after they were notified they needed a permit for construction on their property because it was considered a wetland.

The Sacketts own a vacant lot in Priest Lake, Idaho, in a mostly built-out residential subdivision, according to the original SCOTUS filing.

“The lot has no surface water connection to any body of water,” the Sackett petition claims. “In April, 2007, with local permits in hand, the Sacketts began building a family home. But later that year, Respondent Environmental Protection Agency sent them an administrative compliance order determining that their home construction violated the Clean Water Act because their lot contains wetlands that qualify as regulated ‘navigable waters.’”

Their construction has been on indefinite hold ever since, according to the petition, at the risk of “immense monetary penalties.” The Sacketts were told by the EPA they must “first obtain a time-consuming and costly Clean Water Act permit from the Army Corps of Engineers before they could proceed with building their home.”

The Supreme Court in Washington on May 31, 2016, as the justices ruled unanimously that a Minnesota company could file a lawsuit against the U.S. Army Corps of Engineers over the agency's determination that the land is off limits to peat mining under the Clean Water Act. Scott Applewhite/AP Photo

“A plurality opinion authored by Justice Scalia and joined by three other Justices argued that only those wetlands that have a continuous surface water connection to regulated waters may themselves be regulated,” petitioners argue. “A concurring opinion by Justice Kennedy advanced a different and much broader test, allowing for regulation of wetlands regardless of any surface connection, so long as the wetlands bear an (undefined) ’significant nexus’ with traditional navigable waters.”

The 9th U.S. Circuit Court of Appeals employed Justice Anthony Kennedy’s rule to uphold EPA authority over the Sackett homesite.

In January 2022, the Supreme Court agreed to hear the case after the Sacketts appealed the 9th Circuit’s decision to uphold the EPA’s jurisdiction (pdf).

The precise definition of WOTUS is important because it determines which bodies of water are subject to governmental regulation and protection, according to the Congressional Research Service (CRS). The CRS explains in a detailed report that the U.S. Army Corps of Engineers and the EPA are the agencies tasked with implementing the CWA. The Corps and EPA are attempting to administratively define WOTUS through two separate rule-makings.

Lack of Clarity for Decades

In a separate 2019 report by CRS on the history of the government defining WOTUS, CRS explains that the lack of clarity has been an ongoing struggle (pdf).

“For more than forty-five years, all three branches of government have struggled with how to interpret the meaning of ‘waters of the United States’ in the Clean Water Act,” the report explains. “In a shift from early water pollution legislation, the 1972 amendments to the Federal Water Pollution Control Act, which came to be known as the CWA, eliminated the requirement that federally regulated waters must be capable of being used by vessels in interstate commerce.”

The rule changes removed traditional navigability tests to determine WOTUS, including territorial seas, CRS explains. The Clean Water Act does not itself define WOTUS, so the two agencies that administer the statute have had to define it in terms of regulations.

Regulations from the U.S. Army Corps of Engineers and the EPA have been in effect since the 1980s, with supplemental guidance issued in 2003 and 2008 SCOTUS rulings. The most notable and related to Sackett is Rapanos v. United States, which limited the scope of regulation.

However, in doing so, the SCOTUS decisions “created uncertainty about the intended scope of waters protected by CWA.”

The Corps and EPA acknowledge that no process was in place to determine timely, predictable, and jurisdictional determinations, according to the CRS report. Stakeholders requested a formal rulemaking to revise regulations after the SCOTUS cases of the early 2000s.

Keeping Up With Rule Changes

Under the Obama administration, in 2015 the Corps and the EPA issued the Clean Water Rule, redefining WOTUS for the first time since the ‘80s. The CRS report stated some stakeholders and observers saw it as expanded overreach by the EPA, while the agencies held that the intent was to clarify its jurisdiction.

The rule was quickly challenged in court by groups and states across the country.

The Trump administration described the rule as “overreach” and took steps to rescind and revise the rule to pre-2015 standards. This reversed the expansion of the rule and narrowed the EPA’s jurisdiction. It was also quickly challenged in courts across the country.

Now under the Biden administration, the EPA and the Corps again reversed course to review the ruling under Trump without rescinding it and move back toward the Obama administration’s rules, a step to merge the two rules.

The rule changes in quick succession are consistent with what the RGA mentioned in its letter.