WOTUS floats back up before Supreme Court

National Corn Growers Association | EPA Releases WOTUS Repeal Rule


Looks like WOTUS will get a review from the U.S. Supreme Court after the Biden administration moved to expand what the Trump administration had narrowed on what waters are protected under the Clean Water Act.

The court agreed this week to reexamine its past rulings on “waters of the U.S.” and how they were implemented. Those rulings certainly had an impact in agricultural states such as Oklahoma and others in the midwestern part of the country.

POLITICO reported the high court in some fashion will revisit its notoriously complex ruling in 2006 over what waters are federally protected that generated two litmus tests, a more stringent one concocted by Antonin Scalia and a broader one created by Anthony Kennedy that most courts have since relied on. The court could name the Scalia test as controlling, or use the strengthened conservative majority to set a new standard.

As POLITICO pointed out, the EPA has certainly swung the bat both ways, depending whether a Republican is in the White House or a Democrat. When Obama ran things, WOTUS had a broad swath, much to the dismay of some ag groups in Oklahoma. Then Trump entered the picture and decided the Obama administration went too far. Now Biden’s in the White House and set his own wider standards.

As a result of the Supreme Court move to review WOTUS, Republicans in the U.S. House responded quickly, urging the EPA not to adopt what the Biden administration recently wanted to implement.

“Given this significant development, the Biden administration should immediately cease its efforts to issue a new WOTUS definition rule that will greatly broaden the federal government’s jurisdiction over privately owned land and add layers of red tape for farmers, builders, small businesses, local governments, and many Americans,” Transportation Committee ranking member Sam Graves (R-La.) and Water Resources and Environment Subcommittee Ranking Member David Rouzer (R-N.C.) said in a statement Monday.


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