25 Governors Ask Biden for WOTUS Delay

31 Jan 2023

LINCOLN, Neb. (DTN) -- Calling the Biden administration's new waters of the U.S. rule confusing and costly to communities, the governors of 25 states asked the administration to delay the implementation of the rule until after a key Clean Water Act ruling in the Sackett case is issued sometime this spring.

The EPA and the U.S. Army Corps of Engineers released the final rule on Dec. 30, which sparked a couple of lawsuits pending in the U.S. District Court in the Southern District of Texas.

The final rule, https://www.dtnpf.com/…, by and large exempts most farming practices from CWA jurisdiction but implements the so-called "significant-nexus" and "relatively permanent" standards when deciding which waters are jurisdictional. Ag and many other industry groups have historically opposed the significant-nexus standard for fear of it being used to claim jurisdiction over dry land features.

The 25 governors said in a letter to President Joe Biden on Monday that the timing of the final rule couldn't have been worse.

"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," the letter said.

"Those who rely on farming and small business as a backbone of their local economies are particularly vulnerable. Another burdensome and overbroad regulation from the federal government could not come at a worse time for America. Having already squandered much of America's energy independence, you should not increase costs for consumers by tying up energy production with even more red tape."

The Supreme Court is expected to issue a ruling in Sackett v EPA sometime before June. The new WOTUS rule is expected to take effect sometime around March 1.

The ruling could determine how the EPA and Corps of Engineers make CWA determinations on wetlands in particular. Prior to the final rule's release, numerous federal lawmakers and others had asked the agencies to delay the rule pending the Supreme Court ruling.

The letter to Biden was signed by the governors of Idaho, Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Iowa, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia and Wyoming.

"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 governors wrote.

"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. We call into question the timing and necessity of the rule with the court's upcoming Sackett decision, which is expected by June of this year. That opinion could significantly impact the final rule and its implementation. 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 the final rule "hinders state governments" that are trying to "give clarity and consistency to businesses, farms and individuals regarding the regulatory framework for water."

The governors said they are concerned about "broad definitions" used in the rule that "only add to the confusing and complicated history of WOTUS."

They said understanding the final rule will require states to "wade through an extensive and unclearly written web" of interpretations.

"Given the many outstanding issues the recent WOTUS rule generates, particularly in rural America, we ask that you delay implementation of the rule until the court decides Sackett. Small businesses, farmers and communities across America simply cannot afford another costly revision."

25 Governors Ask Biden for WOTUS Delay

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