Capito wants to know Biden's plan on WOTUS rule

Jun. 23—Now that the U.S. Supreme Court has ruled that the Biden administration's proposed definition of the "waters of the United States" is illegal, U.S. Senator Shelley Moore Capito, R-W.Va., wants to know what steps the administration is taking to adhere to the high court's ruling.

Capito, along with a coalition of Republicans lawmakers in the U.S. Senate and U.S. House, are requesting a briefing from EPA Administrator Michael S. Regan and Assistant Secretary of the Army for Civil Works Michael L. Connor on what steps the administration is taking to implement the Supreme Court's ruling.

The Supreme Court's decision in the Sackett v. EPA (Sackett II) case found that Biden's WOTUS rule was an improper reading of the Clean Water Act. Biden's plan would have allowed the federal government to police water pollution in millions of acres of wetland, including private property and farm land.

Biden later called the Supreme Court's decision "disappointing" and said in a statement it would put rivers, streams, lakes and ponds connected to them at risk of pollution. But Republican lawmakers argued the WOTUS rule was another example of federal overreach that would unfairly burden property owners and farmers.

"The court's ruling reinforces property owners' rights, protects the separation of powers by limiting your agencies' authority to what Congress has delegated in statute, and ensures adherence to the congressional intent in writing the Clean Water Act (CWA)," Capito, and the coalition of Republican lawmakers, said in the letter to the administration. "Additionally, the court upholds the cooperative federalism framework of the CWA, as well as the states' authority and responsibility to regulate non-federal waters within their borders. All nine Supreme Court justices agreed that the Biden Administration's definition of 'waters of the United States' (WOTUS) based on 'significant nexus' is illegitimate, and a majority of the court articulated a clear, easily administrable definition of WOTUS."

Capito, ranking member of the Environment and Public Works Committee, was joined by U.S. Rep. Sam Graves, R-Mo., chairman of the Transportation and Infrastructure Committee, U.S. Senator Cynthia Lummis, R-Wyo., ranking member of EPW's Fisheries, Wildlife, and Water Subcommittee, and U.S. Rep. David Rouzer, R-N.C., chairman of T&I's Water Resources and Environment Subcommittee, in requesting the briefing with Regan and Connor.

The lawmakers want that briefing to occur by June 28. Capito is warning that Biden appears to be taking steps to delay the implementation of the high court's ruling.

"In implementing the court's decision, the agencies must adhere to the majority opinion and not slow-walk compliance with the decision," Capito, and the GOP lawmakers, added in the letter. "The agencies wasted valuable time and resources by prioritizing the promulgation of a rule over the first two years of the Biden administration; that is now clearly unlawful. Notably, this administration ignored our repeated admonitions that the agencies should wait until the Supreme Court acted to proceed, and our warnings that the rule being drafted would not be "durable." Now the EPA and the Corps must work to bring application of WOTUS quickly and effectively in line with Sackett II."

In a related development, Capito on Thursday also announced legislation which she said would help reform the EPA's air quality standards process, and help ensure states like West Virginia and its employers aren't unfairly penalized by "unrealistic or burdensome new EPA rules."

Called the National Ambient Air Quality Standards Implementation Act of 2023, Capito said the proposed legislation would improve the processes for the EPA to revise current air quality standards and for states to implement the standards. Under the Clean Air Act's NAAQS program, the EPA sets standards for six criteria pollutants, including ground-level ozone and particulate matter.

Earlier this year, Capito said the EPA proposed to make the NAAQS for particulate matter more stringent and is considering updating the standards for ozone and lead. Capito said the EPA has consistently missed statutory deadlines for both reviewing standards and for providing implementation guidance to states. She said her legislation would address these issues and set a more reasonable and attainable schedule for EPA actions.

"As the EPA is currently in the process of updating its air quality standards, we must ensure states and employers aren't unfairly penalized by unrealistic or burdensome new rules," Capito said. "The NAAQS Implementation Act of 2023 would provide needed clarity and flexibility as the EPA proposes and implements these air quality standards, while at the same time protecting American infrastructure and manufacturing jobs."

— Contact Charles Owens at cowens@bdtonline.com

— Contact Charles Owens at cowens@bdtonline.com. Follow him @BDTOwens