U.S. Senator Shelley Moore Capito (R-W.Va.), Ranking Member of the Senate Environment and Public Works (EPW) Committee, led her Republican colleagues on the committee in a letter to U.S. Environmental Protection Agency (EPA) Administrator Michael Regan and Assistant Secretary of the Army for Civil Works Michael Connor. The letter specifically requests that the Biden administration immediately halt plans to finalize a novel definition of Waters of the United States (WOTUS) under the Clean Water Act until after the Supreme Court’s ruling in Sackett v. Environmental Protection Agency.
“It is expected that the Court will rule on the appropriate test for determining whether waterbodies and wetlands are jurisdictional waters under the Clean Water Act for the first time in more than 15 years. The Court’s eventual ruling will have direct bearing on the definition of WOTUS. Given this pending litigation, we believe that the Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (collectively, the ‘Agencies’) must stop any work to redefine WOTUS until you are able to assess and adhere to the Court’s ruling,” the members wrote.
“Despite this Administration’s statements of a desire to establish a ‘durable’ definition of WOTUS in order to end ‘whiplash in how to best protect our waters across America,’ its approach to date has exacerbated—not mitigated—regulatory uncertainty. This summer, the Administration chose to uproot the Navigable Waters Protection Rule (NWPR) and announced plans for two different rulemakings. If the Administration maintains this approach, it will then need to implement at least three different definitions of WOTUS over the course of the next few years to accommodate new direction from the Court,” the members continued.
In addition to Ranking Member Capito, the following Republican senators on the EPW Committee signed the letter: Senators Jim Inhofe (R-Okla.), Kevin Cramer (R-N.D.), Cynthia Lummis (R-Wyo.), Richard Shelby (R-Ala.), John Boozman (R-Ark.), Roger Wicker (R-Miss.), Dan Sullivan (R-Alaska), Joni Ernst (R-Iowa), and Lindsey Graham (R-S.C.).
In November 2021, Ranking Member Capito issued a statement expressing her dismay at the announcement of the first step in EPA’s two-step process to replace the Trump administration’s 2020 Navigable Waters Protection Rule (NWPR) and promulgate a new definition of WOTUS.
In August 2021, Ranking Member Capito sent a letter to EPA Administrator Michael Regan and Jaime Pinkham, the Acting Assistant Secretary of the Army for Civil Works, asking for a more complete and comprehensive stakeholder engagement process regarding repealing and replacing NWPR. Specifically, Ranking Member Capito requested an extended public comment period for receiving recommendations.
That letter followed Ranking Member Capito’s previous letter requesting additional clarity on the basis for the decision to repeal and replace NWPR and yet another letter, in which she led her Republican colleagues on the committee in sending, requesting increased transparency into the process of repealing NWPR.
In July 2021, Michael Connor, President Biden’s nominee to lead the Corps, admitted he wasn’t aware of any specific environmental degradation under NWPR.
Ranking Member Capito, along with Senators Cramer, Lummis, Inhofe, and Wicker, also introduced legislation in July 2021 that would codify NWPR.
View the full letter hereand below:
Dear Administrator Regan and Assistant Secretary Connor:
We write to request that the Biden Administration immediately halt plans to finalize a novel definition of “waters of the United States” (WOTUS) under the Clean Water Act. Last month, the Supreme Court agreed to hear Sackett v. Environmental Protection Agency, Case No. 21-454 (Sackett). It is expected that the Court will rule on the appropriate test for determining whether waterbodies and wetlands are jurisdictional waters under the Clean Water Act for the first time in more than 15 years. The Court’s eventual ruling will have direct bearing on the definition of WOTUS. Given this pending litigation, we believe that the Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (collectively, the “Agencies”) must stop any work to redefine WOTUS until you are able to assess and adhere to the Court’s ruling.
Despite this Administration’s statements of a desire to establish a “durable” definition of WOTUS in order to end “whiplash in how to best protect our waters across America,” its approach to date has exacerbated—not mitigated—regulatory uncertainty. This summer, the Administration chose to uproot the Navigable Waters Protection Rule (NWPR) and announced plans for two different rulemakings. If the Administration maintains this approach, it will then need to implement at least three different definitions of WOTUS over the course of the next few years to accommodate new direction from the Court.
The Court’s decision to hear Sackett offers the opportunity for the Administration to correct its course. Rather than implementing its multi-step, confusing, and opaque process to change the WOTUS definition, the Administration should wait for the Court’s ruling before developing novel regulatory definitions. In fact, the Agencies have publicly stated themselves that their revised regulatory definition of WOTUS would contain “updates to be consistent with relevant Supreme Court decisions.” It would be premature for the Agencies to change the WOTUS definition to be consistent with Supreme Court precedent until the Court rules in Sackett.
For the duration of the Sackett litigation, the Administration should refocus its resources on supporting and advancing critical permitting and infrastructure development, such as expeditiously processing Clean Water Act permits. The Infrastructure Investment and Jobs Act, P.L. 117-58, authorizes and appropriates funding for the development of significant new assets and improvements to existing assets, including roads, bridges, locks, dams, levees, and port infrastructure. Instead of wasting critical time, staff resources, and taxpayer dollars on rulemaking efforts that could be upended by the Court even before the end of the year, the Agencies must focus their resources on reviewing and issuing the permits needed for important infrastructure projects to move forward.
The Administration should also use this time to continue to engage with farmers, landowners, states, businesses, and other affected stakeholders to understand how changes to the definition of WOTUS impact property and important economic activities. Several stakeholders and Members of Congress have written to the Agencies requesting additional time for the public to provide feedback on the current WOTUS rulemaking process, due to the already complicated nature of the proposed rule and broad impacts it will have. Meaningful engagement is not just listening to stakeholders, but applying the information stakeholders provide to inform the development and implementation of regulations consistent with the law.
For example, we were deeply troubled by EPA Assistant Administrator for Water Radhika Fox’s January 13, 2022, response to a letter from Senator Joni Ernst, in which Ms. Fox stated:
[T]he agencies’ experience was not that the NWPR provided clarity, predictability, or consistency in the application of the CWA. To the contrary, and as explained in considerable detail in the agencies’ recently released proposed rule, the NWPR was difficult to implement and yielded inconsistent results (a copy of the proposed rule can be found at www.epa.gov/wotus). Also, foundational concepts underlying much of it were confusing. These factors alone can be a source of harm to farmers and others seeking certainty.
Ms. Fox’s statement about the alleged harm to farmers from the NWPR is directly contradicted by agriculture stakeholder feedback and key recommendations from a federal advisory committee developed the preceding month. The Farm, Ranch, and Rural Communities Advisory Committee stated:
American agriculture appreciated the clarity the 2020 Navigable Waters Protection Rule (2020 Rule) provided. Many features were retained within federal jurisdiction, but it was workable for farmers, ranchers, and rural communities. Unfortunately, not much implementation was allowed to be realized before the agencies attempt to again rewrite the definition of WOTUS.
This demonstrates a stark disconnect between the Administration’s characterization of stakeholder views on the definition of WOTUS and the documented stakeholder views themselves and underscores the need for more meaningful engagement. Any regulatory changes concerning WOTUS have far-reaching implications for stakeholders, as well as for the ability to authorize and complete critical infrastructure projects in a timely and efficient manner. We encourage the Administration to use this time to learn from affected stakeholders and focus efforts on supporting the improvement and buildout of infrastructure across the country.