WOTUS Still in Play After SCOTUS Decision—Senate EPW Hearing

The never-ending legal fight over EPA’s wetlands jurisdiction and which ones are Waters of the U.S. is likely to live up to its reputation. That’s from testimony at a Senate hearing. The Environmental Protection Agency’s vagueness in a final Waters of the U.S. rule intended to conform to the Supreme Court’s May decision in “Sackett versus the EPA” will only lead to more lawsuits.

Former EPA Assistant Administrator for Enforcement Susan Bodine says the agency did end the “significant nexus” wetlands test from its original January rule. She says, “But in the preamble in January ’23, again, that you can say that something is ‘relatively permanent’ just if you can see a bed and bank, just if you see wet leaves. That’s the same test that had been used in the past to identify a stream, even a stream or a channel that only has water when it rains.”

A vagueness the American Farm Bureau complained last month will upend the point of two Supreme Court cases and decades of litigation by half the states and farm groups to end EPA wetlands uncertainty. Bodine agreed, “They could have written ‘bright lines’ in their conforming rule and chose not to. I do think the agencies are trying to hold onto as much jurisdiction as they want. There has to be some case by case—I’m not going to say that everything is absolutely ‘bright line’–but what we have here is essentially 100 percent case by case.”

That’s complicated by a patchwork of states, 27 of which won court freezes of EPA’s overturned January rule and now face a pre-2015 WOTUS interpretation. West Virginia Senator Shelly Moore Capito showed a map saying, “The purple is conforming to the 2015 rule. The green is the new rule. I mean, how in the world are farmers or construction, or anything going to go forward trying to figure this maize of regulatory ‘mishmash.’”

The need for national consistency was the one thing Capito and Chair Tom Carper agreed on. Capito and Bodine agreed EPA’s final rule opened the door to more regulatory “overreach” and likely more lawsuits and another WOTUS rule.