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At the beginning of the week President Biden vetoed House Joint Resolution 27, a resolution of disapproval of the White House’s and Environmental Protection Agency’s newly issued Waters of the U.S. (WOTUS) rules under the terms of the Congressional Review Act.
In the latter part of the week, 24 states were added to Texas and Idaho enacting an injunction against implementation of the new WOTUS rules until after the Supreme Court of the United States (SCOTUS) makes it ruling in Sackett v. EPA; a ruling expected by mid-summer.
With more than 50 percent of the states in the U.S. having injunctions against the implementation of the new WOTUS rules, it is time for the White House and the EPA to step back and wait for the SCOTUS decision.
The newest iteration of the WOTUS rules take interpretation and enforcement of the rules back to the rules imposed by former President Obama. Under the pre-2015 interpretation of WOTUS, virtually every body of water, permanent or ephemeral, was considered potential waters of the U.S. In farm country, that included seasonal irrigation ditches and ponds fed by snow melt.
WOTUS has been challenging since it was established because the definitions of “waters of the U.S.” and the regulatory authority to govern them have both changed based upon who occupied the White House, rather than having a firm manner by which to interpret what those waters should be. The subjective nature of WOTUS definitions and rules has been a thorn in the side of every person with an interest in water rights.
Rooted in the auspices of the Clean Water Act, and initially established to create regulatory approaches to navigable waterways, waters of the U.S. were intended to give the EPA a means by which to apply federal rules in keeping our surface water “clean” of pollutants. Over time, other interpretations and definitions were introduced to expand or contract the authority of the EPA.
The introduction of “significant nexus” truly complicated WOTUS. Significant nexus was used as a term to define how to measure waters that ultimately flowed into navigable waterways or were close enough to those waterways as to interfere with their cleanliness. However, no definitive terminology was attached to significant nexus, making it extraordinarily subjective – significant nexus could be applied in the “eye of the beholder.”
If the EPA and White House truly wanted to make the WOTUS rules clearer and longer lasting, both would have waited for the SCOTUS ruling in Sackett v EPA. Instead, rules were issued that appear to try to answer questions at hand in the court case, potentially interfering with a deliberation of the nation’s highest court. It is high time for the EPA and White House to recognize their role in this unique moment in time: let the SCOTUS rule and then support its decision without political bias.
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