Republicans question agencies on post-Sackett plans

By E.A. Crunden | 06/21/2023 04:26 PM EDT

Top House and Senate Republicans want to know how EPA and the Army Corps of Engineers plan to implement the Supreme Court ruling.

Sen. Shelley Moore Capito (R-W.Va.).

Senate Environment and Public Works ranking member Shelley Moore Capito (R-W.Va.). Francis Chung/POLITICO

Republicans are questioning the Biden administration on its plans to implement a major Supreme Court ruling that massively scaled back the federal government’s oversight of wetlands.

House and Senate Republican committee leaders Wednesday asked EPA and the Army Corps of Engineers heads about how their agencies are moving forward in the aftermath of Sackett v. EPA.

That historic ruling greatly curtailed agency authorities under the Clean Water Act and has all but gutted the Biden administration’s waters of the United States, or WOTUS, rule.


Industry leaders and Republicans have celebrated the decision as a victory for deregulatory proponents. Now they want insight into how the government is moving forward to ensure Sackett is fully implemented.

“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,” wrote the lawmakers, addressing EPA Administrator Michael Regan and Assistant Secretary of the Army for Civil Works Michael Connor.

They continued: “In implementing the Court’s decision, the Agencies must adhere to the majority opinion and not slow-walk compliance with the decision.”

Signers include Senate Environment and Public Works ranking member Shelley Moore Capito (R-W.Va.); EPW Subcommittee on Fisheries, Wildlife and Water ranking member Cynthia Lummis (R-Wyo.); House Transportation and Infrastructure Chair Sam Graves (R-Mo.); and T&I Subcommittee on Water Resources and Environment Chair David Rouzer (R-N.C.).

Republicans have said for months that the Biden administration moved too quickly on WOTUS, which sought to clarify which wetlands merit Clean Water Act protections.

EPA and the Army Corps finalized the latest version at the end of December, signing off on a rule many believed would be impacted by the outcome of Sackett

In their letter, the committee leaders underscored those qualms, arguing that the agencies “wasted valuable time and resources” in prioritizing promulgating their rule.

And while the lawmakers said they were pleased by the Supreme Court’s decision, they are concerned about what they see as a delay on the part of EPA and the Army Corps to swiftly implement it.

Among other qualms, they noted E&E News coverage reporting that the Army Corps has frozen processing approved jurisdictional determinations in the wake of the case.

“Such a freeze in processing jurisdictional determinations unnecessarily delays the permitting process for projects,” the lawmakers wrote.

In the wake of an earlier historic Supreme Court decision regarding wetlands, Rapanos v. United States, a similar pause played out over the course of a year as agencies worked on guidance accounting for the ruling.

But Republicans leaders said the current pause is unwarranted and simply slowing down the process of putting Sackett into practice.

To solve the quagmire, they asked agencies to “provide immediate direction to their regional and district offices” outlining how they can implement Sackett and ensure clarity and consistency.

They requested a briefing and response to their questions no later than June 28, including an answer to whether the Army Corps would immediately resume the issuance of jurisdictional determinations.

The Army Corps redirected a request for comment to Connor’s office, which did not respond before publication. EPA, meanwhile, said that the agency would review the letter and respond through “appropriate channels.”