The Biden Administration is not giving up on its WOTUS rule, even after the Supreme Court in May struck down the rule’s cornerstone, the ‘significant nexus’ test for EPA power over wetlands. The Biden Environmental Protection Agency and Army Corps insist they can still implement the bulk of their Waters of the U.S. rule, according to National Cattlemen’s Chief Counsel Mary-Thomas Hart.
Hart says; “The EPA and the Army Corps of Engineers have now said that they believe they can make some small adjustments to the existing WOTUS definition and give us a direct final rule that will comply with this Supreme Court standard without going through notice and comment rulemaking.”
NCBA and a coalition of groups have asked a federal district court in Texas to strike down the Biden WOTUS rule nationwide, given the Supreme Court’s unanimous decision in Sackett v. EPA. Hart argues a “surgical approach” to fixing WOTUS won’t work.
Hart added; “The only surgery that I think would effectively work to make this current definition comply with the Supreme Court’s holding in Sackett is a ‘full, quadruple open heart surgery,’ right? It’s going to have to be some real major revision just because the significant nexus standard is the cornerstone of this definition.”
The High Court, in a victory for private property rights, ruled a wetland must have a “continuous surface connection” with a U.S. water to fall under the EPA’s control. The Biden rule is under injunction in 27 states and not being enforced in the remaining 23.
