CHARLESTON — West Virginia Attorney General Patrick Morrisey is leading a coalition of 24 states in a letter to Congress offering “experiences and perspectives” regarding the U.S. Environmental Protection Agency of Waters of the United States “conformed” rule.
The House subcommittee on Water Resources and Environment has scheduled a hearing for this week on Waters of the United States Implementation Post-Sackett [v. Environmental Protection Agency] Decision: Experiences and Perspectives.
“We write to provide our experiences and perspectives as states,” the letter states. “Unfortunately, our recent experiences haven’t been good.
“We look forward to working with the subcommittee to move closer to the clarity and certainty that Sackett sought. Thank you again for the chance to offer our experiences and perspectives on this important issue.”
Last year, Morrisey led a 26-state coalition in an amicus brief to the Supreme Court in support of the petitioners, Michael and Chantell Sackett.
In May 2023, the Supreme Court rejected federal agencies’ approach on WOTUS, saying their understanding was “inconsistent with the text and structure of the” Clean Water Act. The court also rejected the EPA’s request for deference to the agencies’ misguided rule.
“But even after the U.S. Supreme Court clarified how far the federal government’s regulatory reach extends over rivers, lakes, streams, pools of water, wetlands and more, the federal agencies continued to run amok and issued a conforming rule, leaving most everything intact as far as the original rule is concerned,” Morrisey said, writing in the letter “The states take seriously their responsibility to act as stewards of these vital resources. Protection against water pollution is important. But Congress has spoken to how it wants to tackle that problem; the Supreme Court has placed signposts, too. The agencies cannot defiantly insist on going their own way. …
“The Supreme Court issued a clearer definition for Waters of the United States and basically ruled that state lands and waters are less subject to the whims of unelected bureaucrats,” Morrisey said, writing in the letter the agencies, just a few months after Sackett, “issued a terse ‘conforming’ rule — without notice and comment — that made only a handful of changes to the prior rule that the Supreme Court had so directly condemned.”
The letter lists how the EPA and its co-implementing agency, the U.S. Army Corps of Engineers, purportedly “conformed” to the Supreme Court ruling, but in reality has remained inconsistent with Sackett in several important ways.
The letter also outlines the EPA’s “continued unwillingness to meaningfully apply Sackett’s requirements has led to problems on the ground.”
Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah and Wyoming joined the West Virginia-led letter.
The letter was addressed to Rep. Sam Graves, chairman of the House Committee on Transportation and Infrastructure; Rep. Rick Larsen, ranking member of the House Committee on Transportation and Infrastructure; Rep. David Rouzer, chairman of the House Committee on Water Resources and Environment; and Rep. Grace Napolitano, ranking member of the House Committee on Water Resources and Environment.