GOP governors ask Biden admin to pause on broader clean water rule

Kay Cashman

Petroleum News

As reported by The Center Square on Jan. 31, 25 Republican governors, including Alaska Gov. Mike Dunleavy, oppose a revised federal rule regulating U.S. waterways, citing uncertainty from an undecided U.S. Supreme Court case related to the rule.

According to the article by Derek Draplin, regional editor, the governors sent a letter to the Biden administration on Jan. 30 asking it to delay the implementation of the revised Waters of the United States rule since the U.S. Supreme Court is currently considering Sackett v. EPA. The revised WOTUS rule, released on Dec. 30, reinstates pre-2015 water protections under the federal Clean Water Act. The rule was scaled back under the Trump administration, which triggered lawsuits from environmental groups.

“The substance of the rule hinders State governments as we seek to give clarity and consistency to businesses, farms, and individuals regarding the regulatory framework for water,” the 25 GOP governors wrote. “The broad definitions used in the 514- page document only add to the confusing and complicated history of WOTUS. In fact, it appears that the EPA is seeking to regulate private ponds, ditches, and other small water features.”

The U.S. Environmental Protection Agency said in December the revised rule applies to “traditional navigable waters, the territorial seas, interstate waters, as well as upstream water resources that significantly affect those waters.”

“When Congress passed the Clean Water Act 50 years ago, it recognized that protecting our waters is essential to ensuring healthy communities and a thriving economy,” EPA Administrator Michael Regan said in a statement. “Following extensive stakeholder engagement, and building on what we’ve learned from previous rules, EPA is working to deliver a durable definition of WOTUS that safeguards our nation’s waters, strengthens economic opportunity, and protects people’s health while providing greater certainty for farmers, ranchers, and landowners.”

The governors also questioned the timing of the new rule, given ongoing inflation.

“Another burdensome and overbroad regulation from the federal government could not come at a worse time for America,” they wrote. “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.”

Environmental groups praised the Biden administration’s revised WOTUS rule.

“This comes at a time when we’re seeing unprecedented attacks on federal clean water protections by polluters and their allies,” Jon Devine, director of federal water policy for the Natural Resources Defense Council, said in a statement last month. “While the nation still has significant work to do to fully protect important waters, it’s encouraging to see the country taking a step in the right direction to protect the waters we need for everyone’s health and the environment.”

In addition to Alaska’s governor, the letter was signed by Idaho Gov. Brad Little, Alabama Gov. Kay Ivey, Arkansas Gov. Sarah Sanders, Florida Gov. Ron DeSantis, Georgia Gov. Brian Kemp, Indiana Gov. Eric Holcomb, Iowa Gov. Kim Reynolds, Mississippi Gov. Tate Reeves, Missouri Gov. Mike Parson, Montana Gov. Greg Gianforte, Nebraska Gov. Jim Pillen, Nevada Gov. Joe Lombardo, New Hampshire Gov. Chris Sununu, North Dakota Gov. Doug Burgum, Ohio Gov. Mike DeWine, Oklahoma Gov. Kevin Stitt, South Carolina Gov. Henry McMaster, South Dakota Gov. Kristi Noem, Tennessee Gov. Bill Lee, Texas Gov. Greg Abbott, Utah Gov. Spencer Cox, Virginia Gov. Glenn Youngkin, West Virginia Gov. Jim Justice and Wyoming Gov. Mark Gordon.

Alaska ignored

“Before addressing the specific problems with the rule, the timing of the rulemaking process is wasteful. The Supreme Court has heard arguments in a case that will clarify the scope of the definition of ‘waters of the United States.’ The decision in that case is expected to come in less than three months after the EPA and U. S. Army Corps of Engineer’s new rule defining WOTUS goes into effect,” Dunleavy said.

“The federal agencies are all but certain to have to rework their definition of WOTUS after the court’s ruling. To have conducted the entire federal rulemaking process knowing that the final result is certain to be superseded is a waste of taxpayer dollars,” he said.

“Alaska recognizes the need for a clear definition of WOTUS so that industry, individual citizens and regulators can determine the applicability of the Clean Water Act and plan accordingly. However, in its reinterpretation of WOTUS, the Biden EPA and Army Corps of Engineers have effectively shifted the primary responsibility for managing state water resources from the states to the federal government.”

The primary problem with the WOTUS is that “it is an expansive view of federal jurisdiction and infringes on states’ rights. The final rule impedes Alaska’s ability to carry out its constitutional mandate to provide for the utilization, development, and conservation of all natural resources belonging to the State, and to carefully balance competing interests in managing its natural resources,” Dunleavy said.

“As the Department of Environmental Conservation demonstrated in our comments on the proposed rule, the scientific records the agencies base the new rule on are woefully inadequate to be the basis for regulating wetlands in Alaska. Alaska has more wetlands than every other state combined. Forty-three percent of Alaska’s lands are potential wetlands, compared to an average of less than 5% in other states,” the governor said.

“The 2015 Connectivity Report, which spans 226 pages of discussion of scientific studies and literature, mentions “Alaska” or “Alaskan” nine times, “permafrost” three times, and “wetland mosaics” zero times. The wetland types the 2015 Connection Report does focus on are not representative of the wetlands found in Alaska. The maps and illustrations in the Study do not even depict Alaska. The Biden administration’s WOTUS rule may be scientifically supportable as to waters in states that were studied and meaningfully considered in its supporting documents, but a rule based on this science cannot be applied with a straight face to a State whose unique features were hardly mentioned, much less studied,” Dunleavy said.

“The State of Alaska requested four Alaska-specific exclusions for wetlands in Alaska. The agencies disregarded Alaska’s request and trudged forward with an overly broad definition of WOTUS that infringes on Alaska’s rights and includes no scientific basis for Alaska’s unique climatic and geographic characteristics,” Dunleavy said.

Note: The Center Square’s website can be found at https://www.thecentersquare.com.

- compiled by Kay Cashman